11397108 (P.T.A.B. Jun. 23, 2016)

Ex Parte Bollapragada

Patent Trial and Appeal BoardJun 23, 2016

11397108 (P.T.A.B. Jun. 23, 2016)

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. 11/397,108 04/05/2006 Srinivas Bollapragada 163911-1 (NBCU:0027) 5714 12640 7590 06/24/2016 NBCUniversal Media, LLC c/o Fletcher Yoder, P.C. PO Box 692289 Houston, TX 77269-2289 EXAMINER MOSLEY, KYLE T ART UNIT PAPER NUMBER 3622 MAIL DATE DELIVERY MODE 06/24/2016 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 SRINIVAS BOLLAPRAGADA ____________ Appeal 2014-005181 Application 11/397,1081 Technology Center 3600 ____________ Before ANTON W. FETTING, BRUCE T. WIEDER, and KENNETH G. SCHOPFER, Administrative Patent Judges. SCHOPFER, Administrative Patent Judge. DECISION ON APPEAL This is an appeal under 35 U.S.C. § 134 from the rejection of claims 1–4, 6–14, and 16–22. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. BACKGROUND According to Appellant, “[t]he invention relates generally to advertising and more particularly to systems and methods for automatically scheduling audience deficiency units and/or makegoods.” Spec. ¶ 1. 1 According to Appellant, the real party in interest is NBCUniversal Media LLC. Appeal Br. 2. Appeal 2014-005181 Application 11/397,108 2 CLAIMS Claims 1–4, 6–14, and 16–22 are on appeal. Claim 1 is illustrative of the appealed claims and recites: 1. A method for scheduling audience deficiency units, comprising: via at least one processor: prior to a broadcast period, computing potential shortfalls in delivering promised impressions for an advertising contract and a difference between promised impressions and makegood impressions for all timeslots of the broadcast period; and during the broadcast period, determining and scheduling audience deficiency units based upon the potential shortfalls, by satisfying one or more contract specific requirements while minimizing an amount of premium inventory being used for the audience deficiency units. Appeal Br. 14. REJECTION The Examiner rejects claims 1–4, 6–14, and 16–22 under 35 U.S.C. § 103(a) as unpatentable over Ozer2 in view of Fleming.3 DISCUSSION Appellant groups all claims on appeal together. See Appeal Br. 5–13. We select claim 1 as representative of these claims. With respect to claim 1, the Examiner finds that Ozer discloses a method as claimed except that Ozer fails to disclose “the feature of forecasting shortfall potential audience deficiency units for better scheduling prior to the ‘broadcast’ [event] period.” Final Act. 3–6 (brackets in original, 2 Ozer et al., US 7,136,871 B2, iss. Nov. 14, 2006. 3 Fleming, US 4,787,036, iss. Nov. 22, 1988. Appeal 2014-005181 Application 11/397,108 3 emphasis omitted). The Examiner finds that Fleming discloses this feature. Id. at 6. The Examiner finds: Fleming discloses the feature of forecasting shortfall potential audience deficiency units for better scheduling prior to the 'broadcast' [event] period (see column 2, line 63 and continued to column 3, line 2 whereby 'the institutions annual [period in this case] shortfall for the target year is then predicted by ... for the target year ... then the institutions annual shortfall is ... [calculated] ... to determine the added number of students [impressions] needed for the institution to operate without experiencing a loss'; Examiner interprets Fleming as solving the same problem as the instant invention with respect to filling slots [students in this case for a future period without 'over or under delivery of promised impressions (student) and last minute air time changes [student acceptances/rejections] by forecasting audience deficiency unit up front). Therefore, it would have been obvious to one skilled in the art at the time of the invention of Ozer to include the feature of forecasting shortfalls as taught by Fleming in order to preclude over or under delivery of impressions and last minute changes at the time of the broadcast event. One would have been motivated to include said shortfall forecasting to optimize the placement of impressions and hence optimize the mix of premium and non- premium impressions for maximum revenue. Id. at 6–7 (brackets in original, emphasis omitted). We agree with and adopt the Examiner’s findings and conclusions regarding the scope and content of the prior art with respect to claim 1. See id. at 3–7; Ans. 26–30. As discussed below, we are unpersuaded by Appellant’s arguments. We agree with the Examiner that Appellant “essentially, [only] argues that Fleming is not analogous art.” Ans. 26. Although Appellant asserts that the combination fails to establish a prima facie case of obviousness, Appellant does not contest any of the Examiner’s findings regarding Ozer’s Appeal 2014-005181 Application 11/397,108 4 disclosure and Appellant’s specific arguments relate only to whether Fleming is in the same field of endeavor or pertinent to the same problem with which Appellant is involved. See Appeal Br. 6–13. Our reviewing court has set forth a two-prong test for determining whether a prior art reference is analogous: (1) whether the reference is from the same field of endeavor as the claimed invention, and (2) if the reference is not within the same field of endeavor, whether the reference is reasonably pertinent to the particular problem with which the inventor is involved. In re Klein, 647 F.3d 1343 (Fed. Cir. 2011). Appellant first argues that Fleming does not relate to advertising. Appeal Br. 7. We agree. Fleming relates, in relevant part, to predicting an educational institution’s target year revenue shortfall and determining an additional number of students needed to operate without a loss. See Fleming col. 2, l. 63–col. 3, l. 2. Because Fleming does not relate to advertising, Appellant argues that “it is clear that Fleming does not disclose forecasting ‘shortfall potential audience deficiency units . . .’ as suggested by the [E]xaminer.” Appeal Br. 8. However, the mere fact that Fleming does not relate to advertising is not sufficient to show error in the rejection. Further, although the Examiner states that Fleming discloses forecasting shortfall potential audience units, the rejection makes clear that the Examiner “interprets Fleming as solving the same problem as the instant invention with respect to filling slots [students in this case for a future period without ‘over or under delivery of promised impressions (student) and last minute air time changes [student acceptances/rejections] by forecasting audience deficiency unit up front).” Final Action 6–7 (brackets in original). Based on this finding, the Examiner concludes that it would have been obvious to Appeal 2014-005181 Application 11/397,108 5 include Fleming’s feature of forecasting shortfalls in Ozer “in order to preclude over or under delivery of impressions and last minute changes at the time of the broadcast event,” which would allow for optimized placement of impressions to maximize revenue. Id. Second, Appellant argues that Fleming is not solving the same problem as the claims and that Fleming is not reasonably pertinent to the problem which Appellant is trying to solve. See Appeal Br. 8–10, 11–13. We see no relevant distinction between these arguments and address them together. Appellant first asserts that the Examiner’s analogy between Fleming’s education system budgeting forecast and computing potential advertising shortfalls prior to a broadcast period is erroneous. Appeal Br. 8. Specifically, Appellant argues: Predicting a shortfall in educational system revenues is entirely different than "computing potential shortfalls in delivering promised impressions for an advertising contract and a difference between promised impressions and makegood impressions for all timeslots of the broadcast period," as recited by the claims, having entirely different goals. For example, the predicted shortfall is calculated using revenues and costs versus the potential shortfall in delivering promised impressions. Further, the prediction serves a completely different purpose. For example, the shortfall prediction in Fleming is used "to determine the added number of students needed for the institution to operate without experiencing a loss." Fleming, col. 2, line 63–col. 3, line 2. In contrast, the potential shortfalls in delivering promised impressions may be used, for example, to avoid "suboptimal management of valuable airtime inventory" through enhanced scheduling, as mentioned in the current specification. Specification, paragraph 3. Id. (emphasis omitted). However, we agree with the Examiner that Fleming’s method is analogous as a method of statistical predictive Appeal 2014-005181 Application 11/397,108 6 optimization used to meet financial goals. That the claim applies this method to variables with different names than those used in Fleming, i.e. optimizing student placement vs. optimizing advertisement placement, does not persuade us otherwise. Further, to the extent Appellant argues that the Examiner cannot agree that the specification provides a definition for ADUs as additional units of commercials and then find that ADUs could be student placements in a college, we are not persuaded of error. The rejection makes clear that the Examiner is not asserting that Fleming discloses ADUs as specifically defined in the Specification. Rather, the Examiner relies on Fleming for “the feature of forecasting shortfalls.” Final Action 7. Regarding the specific issue of whether Fleming is reasonably pertinent to the problem with which Appellant is involved, Appellant asserts that Fleming solves a different problem as evidenced by Fleming’s use of different data and analysis than the claims. Appeal Br. 8–10. We are not persuaded. We agree with the Examiner that both the claims and Fleming are related to the problem of predicting shortfalls for an upcoming time period and filling slots to make up for the shortfalls in a way that meets financial goals. Finally, Appellant argues that Fleming does not teach that ADUs are determined and scheduled “during the broadcast year” as claimed. Appeal Br. 10. However, Fleming refers to budgeting for a “target year,” which does not necessarily coincide with the “school year,” as Appellant seem to assert. We find that one of ordinary skill in the art would have recognized that some enrollment period would occur prior to the school year, which would be included in Fleming’s target year. Appeal 2014-005181 Application 11/397,108 7 Based on the foregoing, we find that the Examiner established a prima facie showing of obviousness with respect to claim 1 without error. Accordingly, we sustain the rejection of claim 1 and the remaining claims on appeal.4 CONCLUSION For the reasons set forth above, we affirm the rejection of claims 1–4, 6–14, and 16–22. 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). AFFIRMED 4 Should there be further prosecution of this application, the Examiner may wish to consider reviewing all of the claims for compliance under 35 U.S.C. § 101 in light of the most recent Patent Office guidance on § 101.