Ex Parte 6020929 et al

Patent Trial and Appeal Board

Feb 27, 2013

90011548 (P.T.A.B. Feb. 27, 2013)

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.
90/011,548 03/07/2011 6020929 003597-0003-504 6509
75563 7590 02/27/2013
ROPES & GRAY LLP
PATENT DOCKETING 39/361
1211 AVENUE OF THE AMERICAS
NEW YORK, NY 10036-8704
EXAMINER
ESCALANTE, OVIDIO
ART UNIT PAPER NUMBER
3992
MAIL DATE DELIVERY MODE
02/27/2013 PAPER
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.
PTOL-90A (Rev. 04/07)
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.
90/011,236 09/15/2010 6020929 003597-0003-502 3277
75563 7590 02/27/2013
ROPES & GRAY LLP
PATENT DOCKETING 39/361
1211 AVENUE OF THE AMERICAS
NEW YORK, NY 10036-8704
EXAMINER
ESCALANTE, OVIDIO
ART UNIT PAPER NUMBER
3992
MAIL DATE DELIVERY MODE
02/27/2013 PAPER
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.
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte UNITED VIDEO PROPERTIES, INC.
____________

Appeal 2012-010809
Reexamination Control 90/011236 & 90/011548
Patent 6,020,929
Technology Center 3900
____________

Before HOWARD B. BLANKENSHIP, KEVIN F. TURNER, and
STEPHEN C. SIU, Administrative Patent Judges.

BLANKENSHIP, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE
1

This is an appeal under 35 U.S.C. § 134(b) from the Examiner’s final
rejection of claims 1, 2, 4-14, and 16-28. Claims 3 and 15 have been

1
This appeal is related to Appeal No. 2012-010796, Control No. 90/011231
and Appeal No. 2012-010801, Control No. 90/011237.
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indicated to be patentable. We have jurisdiction under 35 U.S.C. § 306.
Oral hearing was on November 28, 2012.
We affirm.

Invention
The '929 patent is directed to a video mix program guide whereby a
base programming signal has superimposed thereon a scroll information
picture image signal which may be displayed on a viewer’s television. Col.
2, ll. 37-55.
Figure 9 of the '929 patent is reproduced below.

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Figure 9 is said to illustrate a sixty percent video mix, the percentage
indicating the weight of the programming guide signal superimposed on the
base programming signal. Col. 3, ll. 44-49.

Representative Claim
1. A system for displaying interactive program guide data
with television programming that is displayed on a viewer's
display screen, comprising:

a superimposing circuit for displaying the interactive
program guide data in an interactive program guide data display
wherein at least a portion of the interactive program guide data
display has a perceived partial transparency so that the
television programming can be at least partially perceived by a
television viewer through the portion of the interactive program
guide data display.

Prior Art
Reiter US 4,751,578 June 14, 1988
Young US 5,479,268 December 26, 1995
Okura
2
JP 04291582 October 15, 1992
Yoshio EP 0 342 803 B1 November 23, 1989

Brugliera, Digital On-Screen Display: A New Technology for the
Consumer Interface, 18 Int’l Television Symposium and Tec. Exhibition,
Symposium Record Cable Sessions 571 (June 10-15, 1993).

Jerrold Communications Cable Television Equipment IMPULSE
7000 Series Model CFT 2000 User’s Manual (“Jerrold”).

2
With English translation provided by USPTO, September 2011.
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Examiner’s Rejections
Claims 1, 8-10, 12, 13, 20-22, and 24 are rejected under 35 U.S.C.
§ 103(a) as being unpatentable over Reiter and Okura.
Claims 11 and 23 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over Reiter, Okura, and Brugliera.
Claims 1, 2, 4-6, 8-14, 16-18, and 20-24 are rejected under 35 U.S.C.
§ 103(a) as being unpatentable over Okura and Young.
Claims 7 and 19 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over Okura, Young, and Jerrold.

Claim Groupings
Based on Appellant’s arguments in the Appeal Brief, we will decide
the appeal on the basis of representative claims 1, 14, and 27. See 37 C.F.R.
§ 41.37(c)(1)(iv).

FINDINGS OF FACT
1. Okura discloses that prior art television or other video signal
display devices included the channel number of the program image
superimposed on the program image. Okura ¶ [0003].

2. Figure 6 of Okura is reproduced below.
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Figure 6 is said to show the image of the sun displayed as program
image BG on a display screen in a conventional channel display. ¶ [0007].
Some of program image BG is displayed as replaced by channel number
character CH (e.g., channel “1”). Id.

3. Okura notes that a problem with the prior art display was that
the program image BG in the background of the channel number character
CH will not be visible. ¶ [0008].

4. Figure 1 of Okura is reproduced below.
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Figure 1 is said to be an improved circuit such that character CH and
display image BG may be displayed simultaneously. ¶¶ [0011] - [0013].

5. Character output control circuit 12 (Fig. 1) outputs red (R),
green (G), and blue (B) signals as primary color signals for the character
image signal (channel number). ¶ [0013].

6. Character output control circuit 12 also raises background
removal signal SYS1 to “H” level so as not to display the program image in
the synthesized portion where the channel number will be displayed.
¶ [0017].
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7. Background removal signal SYS1 output by character output
control circuit 12 is amplified to a prescribed signal level, yielding signal
SYS2. ¶ [0018].

8. Character output control circuit 12 also raises background color
halftone signal SYM1 to “H” level so as to lower the brightness of program
image BG in the synthesized portion where the channel number will be
displayed, while also making the hue lighter, in a process that Okura calls
“halftone processing.” ¶ [0019].

9. Background color halftone signal SYM1 output by character
output control circuit 12 is amplified to a prescribed signal level, yielding
signal SYM2. ¶ [0020].

10. Background processing circuit 13B (Fig. 1) accepts the video
signal SV1 and applies background processing to attenuate the video signal
corresponding to the synthesized portion within the video signal where the
channel number will be displayed, during the period that the background
removal amplified signal SYS2 is at “H” level. ¶ [0021]. In an obvious
informality, Okura refers to the background removal amplified signal as
“SYM2” in paragraph [0021].

11. RGB switching circuit 13A (Fig. 1) removes the video signal
corresponding to the synthesized portion, where the channel number will be
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displayed, from video signal SV1. The switching circuit obtains synthesized
video signal SCOM2 by superimposing character video signals (SR2, SG2,
and SB2) onto the primary color signals for red, green, and blue in video
signal SV1, which is output to the display. ¶ [0022].

12. Okura further discloses that brightness and hue of the respective
character and video signals in the synthesized portion of the display may be
reduced 50 per cent to enhance viewing of both images. ¶¶ [0031]-[0037].

13. In particular, background removal signal SYS1 may be held at
“L” level while background color halftone signal SYM1 is raised to “H”
level synchronized to character video signals SR2, SG2, and SB2. Thus, in
the portion where channel number character CH is displayed, the brightness
of program image BG based on video signal SV1 drops while the hue
becomes lighter. ¶ [0033].

14. Figure 3 of Okura is reproduced below.
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Figure 3 is said to illustrate the display image during halftone
processing. ¶ [0049]. As shown in Figure 3(A), the channel number
character may be selected by the viewer to have maximum brightness such
that it has priority over program image BG. ¶ [0030]. When program image
BG and channel number character CH are each halftoned and synthesized,
program image BG can be displayed through channel character number CH
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such that program image BG can be seen in its entirety. ¶ [0034]-[0037];
Fig. 3(B).

ANALYSIS
Claim 1
Appellant contests the Examiner’s findings with respect to what
Okura teaches. App. Br. 6-11. Appellant contends that Okura describes
“stippling” -- “interleaving” pixels of the background image and the display
character such that the resulting display has pixels of the background image
alternated with pixels of the character image -- as opposed to combining the
background image and character image (e.g., on a pixel-by-pixel basis).
Although Okura does not use the term “stippling,” Appellant contends
that “halftoning” is synonymous with “stippling.” However, Okura sets
forth what is meant by “halftone processing” -- lowering image brightness
and lightening the hue. FF 7; see also Okura ¶¶ [0023], [0046]. Okura’s
definition does not support the view that “halftoning” in the context of
Okura’s disclosure means outputting adjacent pixels of background image
and character image.
In the Evidence Appendix of the Appeal Brief, Appellant provides a
“First Supplemental Declaration” by Mr. Stephen D. Bistrow in support of
the contention that the Examiner erred in findings with respect to Okura.
Mr. Bistrow alleges that block 13A (Fig. 1) of Okura “switches” between the
RGB (character) input and the external video provided by block 13B.
Bistrow Decl. ¶ 8. However, no express disclosure of this “switching” is
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pointed out in the reference. The Declaration does, however, point out that
Okura refers to element 13A as a “switch.” Id., ¶¶ 9-11.
However, the only input to element 13A (Fig. 1) that might trigger a
“switching” operation appears to be the amplified signal SYS2 from
character generator 12, which is raised to indicate to switch 13A to not
display the program image in the synthesized portion where the channel
number will be displayed. FF 6-7. Absent any disclosure of “switching” by
element 13A between the RGB character input and the video signal, Okura
can be read as “switching” between not displaying the program image in the
portion of the output where the channel number will be displayed (FF 6),
and displaying the program image in the portion of the output where the
channel number will be displayed. See FF 13; Okura Fig. 3(B).
Although the Bistrow Declaration (¶ 14) recognizes there is a
“cancellation signal for the video,” no explanation is provided as to why a
“corresponding cancellation signal for the character” might be needed. The
“character” is displayed at full brightness and hue when the corresponding
program image is removed (Okura ¶¶ [0029]-[0030]) -- and at reduced
brightness and hue when the corresponding program image is not removed,
but is also present at reduced brightness and hue (id., ¶¶ [0033]-[0034]).
We also observe that the Bistrow Declaration (¶ 14) quotes,
ostensibly, from Okura as disclosing “multiplexing” of the character video
signals SR2, SG2, SB2 on the red, green and blue primary “colour” signals
of the video signal SV1. Mr. Bistrow appears to be quoting from what the
Appeal Brief’s Evidence Appendix refers to as “Patent Owner’s” translation
of Okura (Exhibit B). We consider the USPTO’s translation of Okura,
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obtained from an outside contractor in September 2011, to be the more
reliable. Exhibit B does not indicate who or what produced the English
translation, for what purpose, and when. Moreover, Exhibit B (Appellant’s
translation) refers to character information being “superimposed” on the
display video at page 1 (Abstract), page 2 (Claim 1), and at least at
paragraphs [0010], [0011], and [0049] (“Benefit of the invention”).
3

Okura’s use of the word “superimpose” is significant, because that is the
word the '929 patent uses to describe how the program guide is combined
with the video signal. Indeed, patent claim 1 calls for a “superimposing
circuit.”
Appellant also provides, as Exhibit A of the Evidence Appendix, a
technical dictionary definition of “multiplexing.” According to Appellant,
“multiplexing” is understood in the art to mean “interleaving.” However,
Exhibit A defines “multiplex” as “[t]o interleave or simultaneously transmit
two or more messages on a single channel.” IEEE Standard Dictionary of
Electrical and Electronics Terms (1993) at 829 (emphasis added). If
Appellant puts forth the word “interleaving” to suggest that pixels of the
background image are alternated with pixels of the character image, that
would not be a simultaneous transmission of two or more messages on a
single channel, but an output of first one pixel and then another. The
definition provided by Appellant either indicates that “interleave” is
synonymous with simultaneous transmission, or (more likely) that the word
“multiplex” covers both of “interleaving” and “simultaneous transmission”

3
We also note that Exhibit E, purported to be an “Opponent’s” translation of
Okura, also uses the word “superimposes” rather than “multiplexing” in the
corresponding section quoted by the Bistrow Declaration.
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of two or more messages on a single channel. Neither alternative supports
Appellant’s apparent view that “multiplexing” is limited to transmitting one
data item and then the other (i.e., adjacent, as opposed to combined).
Moreover, the technical dictionary definition that Appellant has provided is
directed to the field of communication or data transmission, not to the field
of display devices. In view of the foregoing considerations, even if an action
described by Okura could be translated to the English word “multiplexing,”
Appellant has not demonstrated that the term requires that adjacent pixels of
background image and character image be output.
We acknowledge that Okura does provide a modicum of support for
Appellant’s position. Okura at paragraph [0035] states that the channel
number character CH and program image BG can be simultaneously
displayed “so that an effect as though program image BG is displayed
through channel number CH can be obtained” (emphasis added). However,
when read in context with the rest of the disclosure, the statement does not
necessarily mean that program image BG cannot be seen through channel
number character CH. The single sentence, more likely than not, indicates
that program image BG is seen at reduced brightness and hue (¶ [0034]),
rather than at its original brightness and hue.
We have considered all of Appellant’s arguments and evidence, to the
extent the evidence is relied upon in the briefs. We find the Bistrow
Declaration lacking in credibility in its evaluation of the Okura reference.
We are not persuaded that the Examiner erred in finding that Okura teaches
combining a character image and a program image, such as on a pixel-by-
pixel basis. Okura teaches a character image superimposed on a program
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image such that the program image cannot be perceived through the
character image (FF 1, 2, 9; Okura Fig. 3A). Okura also teaches, however, a
character image superimposed on a program image such that the program
image can be perceived through the character image (FF 12-13; Okura Fig.
3B). We therefore are not persuaded of error in the rejection of claim 1.

Claim 14
Claim 14 recites the method of base claim 13 further comprising
causing the perceived partial transparency of the portion of the interactive
guide data display to vary as a function of a weight of perceived partial
transparency.
Okura discloses a 50 per cent partial transparency that may be
changed to various levels by changing the voltage ratio of the resistors in the
circuit. Okura ¶¶ [0042]-[0043]. Appellant seems to contend that claim 14
requires that varying the perceived partial transparency must occur during
normal operation of the display. However, Okura not only teaches varying
the perceived partial transparency, but also how one may do it. We note that
claim 15 is not rejected, which further limits claim 14 in enabling the weight
of perceived partial transparency “to be controlled by the television viewer.”
We therefore are not persuaded of error in the rejection of claim 14.

Claim 27
Claim 27 recites the system of claim 1 wherein a portion of the
interactive program guide data display is displayed without transparency
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such that the portion is opaque with respect to a portion of the television
programming.
Appellant admits that Okura discloses, during what Appellant calls
“Phase I,” that when background removal signal SYS1 is at the “H” level,
channel number CH is displayed opaque relative to the underlying video.
See App. Br. 14-15; FF 6-7, 10-11; Okura Fig. 3(A).
Base claim 1 calls for a “superimposing circuit” for displaying the
interactive program guide data display with a perceived partial transparency
and dependent claim 27 calls for a portion of the program guide data display
being displayed without transparency (i.e., opaque). Okura teaches
“superimposing circuitry” (FF 4) that first displays a character image that is
opaque (“Phase I”), and later a character image that is displayed with a
perceived transparency (“Phase II”). See App. Br. 14-17. We therefore are
not persuaded that claim 27 has been rejected in error.
Even if the claims were to require simultaneous display of a perceived
transparent portion and an opaque portion, Okura teaches each type of
display, although not at the same time. Further, it is undisputed that Reiter
teaches an opaque program guide. See App. Br. 12. “[I]f a technique has
been used to improve one device, and a person of ordinary skill in the art
would recognize that it would improve similar devices in the same way,
using the technique is obvious unless its actual application is beyond his or
her skill.” KSR Int’l Co. v. Teleflex, Inc., 550 U.S. 398, 417 (2007). The
operative question is “whether the improvement is more than the predictable
use of prior art elements according to their established functions.” Id. An
improvement such that a perceived partial transparency and an opaque
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portion are simultaneously present on a program guide represents no more
than the predictable use of prior art elements according to their established
functions, rendering the predictable result of a displayed program guide that
simultaneously contains a perceived partial transparency and an opaque
portion.
We therefore are not persuaded of error in the rejection of claim 27.

DECISION
The Examiner’s decision to reject claims 1, 2, 4-14, and 16-28 is
affirmed.
Extensions of time for taking any subsequent action in connection
with this appeal are governed by 37 C.F.R. § 1.550(c). See 37 C.F.R.
§ 41.50(f).

AFFIRMED

ack
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PATENT OWNER:

ROPES & GRAY LLP
PATENT DOCKETING 39/361
1211 AVENUE OF THE AMERICAS
New York, NY 10036-8704

THIRD PARTY REQUESTER

TONY D. CHEN
CHEN YOSHIMURA LLP
255 S. GRAND AVE., #215
LOS ANGELES, CA 90012
and

FINNEGAN, HENDERSON, FARABOW,
GARRETT & DUNNER, LLP
901 NEW YORK AVENUE, NW
WASHINGTON, DC 20001