Ex Parte BerkowitzDownload PDFPatent Trial and Appeal BoardDec 30, 201613300831 (P.T.A.B. Dec. 30, 2016) Copy Citation 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. 13/300,831 11/21/2011 Daniel Berkowitz 311009-1 1022 (NBCU:0091/YOD) 12640 7590 NBCUniversal Media, LLC c/o Fletcher Yoder, P.C. PO Box 692289 Houston, TX 77269-2289 12/30/2016 EXAMINER MENDOZA, JUNIOR O ART UNIT PAPER NUMBER 2423 MAIL DATE DELIVERY MODE 12/30/2016 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 DANIEL BERKO WITZ Appeal 2016-000637 Application 13/300,831 Technology Center 2400 Before KEVIN C. TROCK, MICHAEL M. BARRY, and JOHN R. KENNY, Administrative Patent Judges. KENNY, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE This is an appeal under 35 U.S.C. § 134(a) from rejections of claims 1—20, which constitute all pending claims. App. Br. 2; Final Act. 1. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. Appeal 2016-000637 Application 13/300,831 SPECIFICATION AND CLAIMED INVENTION Appellant’s disclosure relates generally to web-enabled consumer electronics devices, such as televisions, and more particularly to application structures that facilitate review and approval of web and similar applications while respecting constraints imposed on applications by device makers. Spec. 12. Claim 1, reproduced below, is illustrative of the claimed subject matter: 1 An interactive consumer electronic system comprising: a media device, comprising: a tangible, non-transitory computer readable medium; and a native device platform that defines constraints that applications configured to function on the device must follow; a superapplication layer stored on the tangible, non- transitory computer readable medium of the media device, the superapplication layer being device platform-specific to operate with the media device in accordance with the native device platform for playing digital content and for receiving and processing inputs from a user of the media device in response to the digital content and for receiving and processing inputs from an external server, the superapplication layer configured to operate with a device platform-agnostic application stored on the media device that does not specifically conform to the native device platform; wherein the device platform-agnostic application is authorized to reference and invoke functionalities of the superapplication layer for adaptation of the device platform-agnostic application to the constraints defined by the native device platform. 2 Appeal 2016-000637 Application 13/300,831 REFERENCES Ellis Borquez Jenkin Addington Wetzer US 2005/0283800 A1 Dec. 22, 2005 US 2007/0100648 A1 May 3, 2007 US 2010/0064324 A1 Mar. 11, 2010 US 2010/0071020 A1 Mar. 18, 2010 US 2011/0252132 A1 Oct. 13,2011 REJECTIONS Claims 1, 2, 4—7, 10-12, and 15—18 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over the combination of Ellis and Wetzer. Final Act. 4; Ans. 2. Claims 3, 14, and 19 stand under 35 U.S.C. § 103(a) as being unpatentable over the combination of Ellis, Wetzer, and Borquez et al. Final Act. 11; Ans. 9. Claim 8 stands rejected under 35 U.S.C. § 103(a) as being unpatentable over the combination of Ellis, Wetzer, and Addington. Final Act. 12; Ans. 11. Claims 9, 13, and 20 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over the combination of Ellis, Wetzer, and Jenkin. Final Act. 14; Ans. 12. We have reviewed the Examiner’s rejections in light of Appellant’s contentions of reversible error. We disagree with Appellant’s conclusions. We adopt the Examiner’s findings and reasons as set forth in the Final Action from which this appeal is taken and as set forth in the Answer. We highlight the following for emphasis. ANALYSIS 3 Appeal 2016-000637 Application 13/300,831 Independent Claims 1, 10 and 16 The Examiner finds that Ellis teaches or suggests all the elements of claim 1, except for the requirement that “the superapplication layer [is] configured to operate with a device platform-agnostic application stored on the media device that does not specifically conform to the native device platform” (the “disputed limitation”). Final Act. 5. The Examiner combines Wetzer with Ellis for this disputed limitation and finds that personal information delivery (“PID”) applications 112 in Wetzer are platform agnostic applications that are at least partially stored on user devices 118, which are media devices. Id. at 6 (citing Wetzer || 44, 50, 51, 66, and 99). Appellant argues that Wetzer in combination with Ellis fails to teach or suggest the disputed limitation because the client portions of Wetzer’s PID applications 112 are not device agnostic. App. Br. 7—12; Reply Br. 2—3. We are not persuaded by this argument. As the Examiner finds, Wetzer discloses making applications 112 device-agnostic. Ans. 15 (citing, inter alia, Wetzer Fig. 1, || 50, 103). We agree with the Examiner this disclosure teaches or suggests making the client portions of applications 112 device agnostic. Appellant has not presented any persuasive evidence or arguments indicating that an ordinarily skilled artisan would have difficulty making the client portions of applications 112 device agnostic. See Leapfrog Enters., Inc. v. Fisher-Price, Inc., 485 F.3d 1157, 1162 (Fed. Cir. 2007) (citing KSR InCl Co. v. Teleflex, Inc., 550 U.S. 398, 419 (2007)). Accordingly, we sustain the rejection of claim 1 and of claims 10 and 16, not separately argued. App. Br. 7—12. 4 Appeal 2016-000637 Application 13/300,831 Dependent Claims 3, 14, and 19 Appellant argues that the cited prior art does not teach or suggest the “template application” recited by claims 3,14, and 19, because Borquez, which discloses templates, does not disclose templates that interact with the supperapplication layer recited by these claims. App. Br. 13—14; Reply Br. 4. We are not persuaded by this argument because the Examiner relies on a combination of references to reject claims 3, 14, and 19. Final Act. 11; See, e.g., In reMouttet, 686 F.3d 1322, 1332—33 (Fed. Cir. 2012) (“the test for obviousness is what the combined teachings of the references would have suggested to those having ordinary skill in the art”). As the Examiner explains, Borquez provides evidence that it was well known in the art to use templates for converting an application into a customized version for each platform. Ans. 19—20 (citing Borquez || 34, 110, Fig. 1). Ellis and Wetzer disclose having the application interact with the super application layer. Id. The combination teaches or suggests the disputed limitation. Id. In the Reply Brief, Appellant presents additional arguments for the patentability of claims 3, 4, and 19, but provides no showing of good cause for having waited until the Reply Brief to present those arguments, thereby depriving us the Examiner’s response. Reply Br. 4. Accordingly, we will not consider those arguments. 37 C.F.R. § 41.41(b)(2). Therefore, we sustain the rejection of claims 3, 14, and 19. Dependent Claim 8 Appellant argues that the cited prior art does not teach or suggest the limitation in claim 8 of “wherein the superapplication layer is configured for approval by a manufacturer of the media device, and the application is not subject to approval by the manufacturer” because although Addington 5 Appeal 2016-000637 Application 13/300,831 discloses manufacturers certifying host files, Addington does not disclose host files being approved by a manufacturer of a media device. App. Br. 14—15. We are not persuaded by this argument because the Examiner relies on a combination of references to reject claim 8. Final Act. 12. We agree with the Examiner that Addington teaches or suggests having a hardware manufacturer develop and certify host files. Ans. 20—22 (citing Addington Fig. 26,267 and 277). Ellis and Wetzer teach or suggest the media device with superapplication layer and application. Id. (citing Ellis Fig. 2, 119, 70, 73, and 74; Wetzer Fig. 1, H 50, 103). Combined, the references teach or suggest the disputed limitation. Id. In the Reply Brief, Appellant presents additional arguments for the patentability of claim 8, but provides no showing of good cause for having waited until the Reply Brief to present those arguments, thereby depriving us of the Examiner’s response. Reply Br. 5. Accordingly, we will not consider those arguments. 37 C.F.R. § 41.41(b)(2). Therefore, we sustain the rejection of claim 8. Dependent Claims 9, 13, and 20 Appellant argues that the cited prior art does not teach or suggest the limitation in claims 9 and 13 (and similarly recited in claim 20) of “comprising a plurality of superapplications, wherein each superapplication comprises functionalities that are referenced and invoked by the device platform-agnostic application for adaptation of content for playing on the media device” because the APIs in Jenkins provide functionalities of middleware and not of the device layer like the superapplications recited in claims 9, 13, and 20. App. Br. 15—16; Reply Br. 5—6. Appellant further argues that Jenkins dos not appear to adapt its content for playing on a media 6 Appeal 2016-000637 Application 13/300,831 device. App. Br. 15—16. We are not persuaded by these arguments because the Examiner relies on a combination of references to reject claims 9, 13, and 20. Final Act. 14. As the Examiner sets forth, Jenkins teaches or suggests using more than one core API. Ans. 22—23 (citing Jenkins 68 and 73). Ellis and Wetzer teach the remaining aspects of the limitation. Id. Collectively, the references suggest the disputed limitation. Id. In the Reply Brief, Appellant presents an additional argument for the patentability of claim 8, but provides no showing of good cause for having waited until the Reply Brief to present that argument, thereby depriving us of the Examiner’s response. Reply Br. 5—6. Accordingly, we will not consider that argument. 37 C.F.R. § 41.41(b)(2). Therefore, we sustain the rejection of claims 9, 13, and 20. Dependent Claim 11 Appellant argues that Ellis and Wetzer do not teach or suggest the limitation of claim 11 of “wherein the media device comprises an internet- ready television” because Ellis discloses providing an interactive television application guide (that allows a user to access the internet) on television equipment (e.g., a set top box), which does not include a television. App. Br. 12—13; Reply Br. 3^4. We are not persuaded by this argument. As the Examiner finds, Ellis discloses its user television equipment includes an advanced television receiver, which the Examiner finds to be a television. Ans. 18 (citing Ellis Fig. 2, || 8, 65, and 69). We agree with these findings and further note that Appellant has presented no persuasive evidence or argument why (i) an advanced television receiver, which Ellis specifically describes can include set-top box functionality (| 8), is not a television and (ii) why a television that allows a user to access the internet would not be an 7 Appeal 2016-000637 Application 13/300,831 internet-ready television. App. Br. 12—13; Reply Br. 3^4. Accordingly, we sustain the rejection of claim 11. DECISION We affirm the rejections of claims 1—20. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a)(l)(iv). AFFIRMED 8 Copy with citationCopy as parenthetical citation