Ex Parte Broberg

Board of Patent Appeals and Interferences

Apr 29, 2002

08638339 (B.P.A.I. Apr. 29, 2002)

The opinion in support of the decision being entered today was not written for publication
and is not binding precedent of the Board.

Paper No. 14

UNITED STATES PATENT AND TRADEMARK OFFICE

_____________________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
______________________

Ex parte DAVID K. BROBERG
______________________

Appeal No. 2000-0545
Application 08/638,339
______________________

ON BRIEF
______________________

Before FLEMING, RUGGIERO and BLANKENSHIP Administrative Patent Judges.

FLEMING, Administrative Patent Judge.

DECISION ON APPEAL
This is a decision on appeal under 35 U.S.C. § 134 from the final rejection of
claims 1-29, all the claims pending in the instant application.
The instant invention discloses a device for selectively providing audiovisual
signals from one of a plurality of audio/video sources to input receiving circuitry of the
device. Appellant’s Specification, page 3, lines 22-25. The device includes a memory
for storing channel map information for correlating a plurality of channels to the
audio/video source corresponding to each channel, a switch for selectively connecting the
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selected audio/video source to the input receiving circuitry, and a switch controller for
identifying the audio/video source which corresponds to a received channel request and
controls the switch to connect the identified source to the input receiving circuitry.
Specification, page 3, line 25, to page 4, line 1. Multiple sources having overlapping
channel assignments are controlled with user input of a channel. Specification, page 16,
lines 3-11.
Independent claim 1 is representative and is reproduced as follows:
1. An apparatus for selecting audiovisual signals from two or more sources of such
signals having overlapping channel number assignments and delivering the selected
audiovisual signals to an audio/video input, the apparatus comprising, a memory for
storing a user built channel map comprising a plurality of user channel identifiers that
have each been assigned by the user to correlate to one of the channel numbers of the two
or more sources, a switch for selecting one of the sources for connection to the
audio/video input, and a controller in communication with the memory for controlling the
switch to connect the audio/video input to the source of the channel number correlated to
a requested user channel identifier.

In rejecting Appellant’s claims, the Examiner relies on the following references:
Klosterman 5,550,576 Aug. 27, 1996
Beery 5,045,947 Sep. 3, 1991

Claims 1-29 stand rejected under 35 U.S.C. § 103 as obvious over Klosterman
and Beery.
Rather than repeat the arguments of Appellant and Examiner, we refer the reader
to Appellant’s Briefs1 and Examiner’s Answer2 for the respective details thereof.

1 Appellant filed an Appeal Brief on March 19, 1999 and a Reply Brief on July 20, 1999.
2 The Examiner, in response to Appellant’s Brief, mailed an Examiner’s Answer on May 24, 1999.
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OPINION
With full consideration being given the subject matter on appeal, the Examiner’s
rejection and the arguments of Appellant and Examiner, for the reasons stated infra, we
will affirm the Examiner’s rejection of claims 1-29 rejected under 35 U.S.C. § 103.
On the outset, we note that Appellant states on page 3 of the brief that claims 1
through 29 stand or fall together. We note that Appellant argues all of the claims as a
single group in the brief. 37 CFR § 1.192 (c)(7)(July 1, 1998) as amended at 62 Fed.
Reg. 53196 (October 10, 1997), which was controlling at the time of Appellant’s filing
the brief, states:
For each ground of rejection which appellant contests and which applies to
a group of two or more claims, the Board shall select a single claim from
the group and shall decide the appeal as to the ground of rejection on the
basis of that claim alone unless a statement is included that the claims of
the group do not stand or fall together and, in the argument under
paragraph (c)(8) of this section, appellant explains why the claims of the
group are believed to be separately patentable. Merely pointing out
differences in what the claims cover is not an argument as to why the
claims are separately patentable.

Appellant has provided a statement that the claims stand or fall together in regard to the
above groups. We will, thereby, consider Appellant’s claims as standing or falling
together and we will treat claim 1 as a representative claim of that group.
In rejecting claims under 35 U.S.C. § 103, the Examiner bears the initial burden
of establishing a prima facie case of obviousness. In re Oetiker, 977 F.2d 1443, 1445,
24 USPQ 1443, 1444 (Fed. Cir. 1992). See also In re Piasecki, 745 F.2d 1468, 1472,
223 USPQ 785, 788 (Fed. Cir. 1984). The Examiner can satisfy this burden by showing
that some objective teaching in the prior art or knowledge generally available to one of
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ordinary skill in the art suggests the claimed subject matter. In re Fine, 837 F.2d 1071,
1074, 5 USPQ2d 1596, 1598 (Fed. Cir. 1988). Only if this initial burden is met does the
burden of coming forward with evidence or argument shift to the Appellants. Oetiker,
977 F.2d at 1445, 24 USPQ at 1444. See also Piasecki, 745 F.2d at 1472, 223 USPQ at
788.
An obviousness analysis commences with a review and consideration of all the
pertinent evidence and arguments. “In reviewing the [E]xaminer’s decision on appeal,
the Board must necessarily weigh all of the evidence and arguments.” In re Oetiker, 977
F.2d at 1445, 24 USPQ2d at 1444. “[T]he Board must not only assure that the requisite
findings are made, based on evidence of record, but must also explain the reasoning by
which the findings are deemed to support the agency’s conclusion.” In re Lee, 277 F.3d
1338, 1344, 61 USPQ2d 1430, 1434 (Fed. Cir. 2002). With these principles in mind, we
commence review of the pertinent evidence and arguments of Appellant and Examiner.
Appellant argues that “[n]either Klosterman nor Beery disclose, teach or suggest,
the claimed channel number arbitration provided by the ‘memory for storing a user built
channel map comprising a plurality of user channel identifiers that have each been
assigned by the user to correlate to one of the channel numbers of the two or more
sources.’” Appeal Brief, page 5, lines 20-23. Appellant further argues that “neither of
these references teach or suggest the claimed mechanism for arbitrating among multiple
audio/video sources having overlapping channel number assignments.” Appeal Brief,
page 3, lines 27-30.

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As pointed out by our reviewing court, we must first determine the scope of the
claim. “[T]he name of the game is the claim.” In re Hiniker Co., 150 F.3d 1362, 1369,
47 USPQ2d 1523, 1529 (Fed. Cir. 1998). Moreover, when interpreting a claim, words of
the claim are generally given their ordinary and accustomed meaning, unless it appears
from the specification or the file history that they were used differently by the inventor.
Carroll Touch, Inc. v. Electro Mechanical Sys., Inc., 15 F.3d 1573, 1577, 27 USPQ2d
1836, 1840 (Fed. Cir. 1993). Although an inventor is indeed free to define the specific
terms used to describe his or her invention, this must be done with reasonable clarity,
deliberateness, and precision. In re Paulsen, 30 F.3d 1475, 1480, 31 USPQ2d 1671,
1674 (Fed. Cir. 1994). Our reviewing court states in In re Zletz, 893 F.2d 319, 321, 13
USPQ2d 1320, 1322 (Fed. Cir. 1989) that “claims must be interpreted as broadly as their
terms reasonably allow.”
We note that Appellant’s claim 1 recites a “memory for storing a user built
channel map comprising a plurality of user channel identifiers that have each been
assigned by the user to correlate to one of the channel numbers of the two or more
sources . . .” (emphasis added). We must determine the scope of the phrase “user built
channel map” as well as the phrase “assigned by the user to correlate to one of the
channel numbers.”
Addressing the phrase “user built channel map,” Appellant’s specification states
that “[t]he user builds a map in memory that correlates a channel input with a particular
source.” Specification, page 16, lines 5-7. Default values in the channel map decision
list may be overridden by the user via user responses to on-screen menus. Specification,
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page 10, lines 1-5. The use of Appellant’s claim language, “user built channel map”
reasonably allows for the reading of claim 1 language as requiring the user to have
selectively chosen a channel map listing a correlation of channel inputs to their
corresponding sources.
Addressing the phrase “assigned by the user to correlate to one of the channel
numbers,” Appellant’s specification states that “[t]he user may . . . manually add or delete
channels to or from the [channel map decision] list 60, or change the setting . . . for a
given channel in the channel map decision list 60.” Specification, page 10, lines 22-25.
The use of Appellant’s claim language, “assigned by the user to correlate to one of the
channel numbers” reasonably allows for the reading of claim 1 language as requiring the
channel identifiers, as modified or set by the user in the channel map decision list, to
correlate to one of the channel numbers in the two or more sources.
We first determine whether Klosterman teaches channel number arbitration
provided by a memory for storing a user built channel map comprising a plurality of user
channel identifiers that have each been assigned by the user to correlate to one of the
channel numbers of two or more sources. Klosterman teaches a grid guide generated
from television channel guide information received from multiple sources, and providing
a line up of all channels or a selection of channels. Klosterman, column 6, lines 19-29.
The user “[has] the ability to delete and activate the channels displayed in grid guide 50,
[and] the user can determine whether to have one of the … channels, both of the …
channels, or neither of the ..channels.” Klosterman, column 6, lines 43-47. The channel
grid guide information is stored in memory. Klosterman, column 2, lines 24-26. This
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method of merging channel guide information eliminates duplicate channels by allowing
only one channel of the duplicate channels to be displayed. Klosterman, column 10, lines
55-60. Therefore, we find that Klosterman teaches channel number arbitration provided
by a memory for storing a user built channel map (channel grid guide) comprising a
plurality of channel identifiers which the user has determined or assigned to correlate to a
channel number in one of the multiple sources.
We next determine whether Klosterman teaches a mechanism for arbitrating
among multiple audio/video sources having overlapping channel number assignments.
Klosterman states that television channel guide information can be received from
numerous sources, including antenna, cable box and satellite sources. Klosterman,
column 4, lines 6-8. “When multiple sources are used for receiving television channels,
an overlap of channels sometimes occurs.” Klosterman, column 6, lines 39-41.
Television channel guide information received from the multiple sources are merged to
obtain a desired channel grid guide which the user has the ability to delete and activate
channels. Klosterman, column 6, lines 43-46. Therefore, we find that Klosterman
teaches the mechanism for arbitrating among “two or more sources of [audiovisual]
signals having overlapping channel number assignments” as recited in claim 1.
We note that Appellant argues that Klosterman “clearly would fail to be operable
if used in connection with multiple audio/video sources having overlapping channel
number assignments since two audio/video sources would share the same entered, pre-
assigned channel number and no means is provided for discerning exactly which of these
two audio/video source the user desired the program be selected from.” Appeal Brief,
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page 4, lines 21-25. Appellant further argues that “[w]hile Klosterman does address
handling overlapping channel program IDs, Klosterman fails to disclose, teach or
suggest, handling overlapping channel number assignments.” Reply Brief, page 3, lines
8-10.
We find that Klosterman teaches a channel merging method and apparatus which
enables the user to delete channels or activate channels on a channel grid guide,
arbitrating among multiple sources used for receiving channels when an overlap of a
channel occurs. Klosterman, column 6, lines 34-45. The example given by Klosterman
in column 6, lines 45-47, of handling overlapping channel program IDs does not preclude
overlapping channel numbers. In Klosterman, the word “channel” is defined as being
either numerical (for channel numbers) and/or textual (for channel program IDs).
Klosterman, column 6, lines 34-39.
We have found above that the mechanism for arbitrating among multiple
audio/video sources having overlapping channel assignments as taught by Klosterman is
operable to merge channel numbers from multiple sources. “Channel” is not limited in
its definition to only station or program IDs. Rather, the generalized teachings of
Klosterman in column 6, lines 34-39 incorporate other examples where numerical
channels may overlap in a grid guide. Appellant’s claim language does not preclude
Klosterman’s user built grid guide for controlling activation and deletion of overlapping
channels.

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Appellant has not made any other arguments. 37 CFR § 1.192 (a) states:
Appellant must, within two months from the date of the notice of appeal under §
1.191 or within the time allowed for reply to the action from which the appeal was
taken, if such time is later, file a brief in triplicate. The brief must be
accompanied by the fee set forth in § 1.17 (c) and must set forth the authorities
and arguments on which appellant will rely to maintain the appeal. Any
arguments or authorities not included in the brief will be refused consideration by
the Board of Patent Appeals and Interferences, unless good cause is shown.

Thus, 37 CFR § 1.192 provides that only the arguments made by Appellant in the brief
will be considered and that failure to make an argument constitutes a waiver on that
particular point. Support for this rule has been demonstrated by our reviewing court in In
re Berger, 279 F.3d 975, 61 USPQ2d 1523 (Fed. Cir. 2002), wherein the Federal Circuit
Court stated that because Appellant did not contest the merits of the rejections in his brief
to the Federal Circuit court, the issue is waived.
We find that Appellant’s claim 1 is properly rejected under 35 U.S.C. § 103. In
view of the foregoing, we will sustain the decision of the Examiner rejecting claims 1
through 29 under 35 U.S.C. § 103. Accordingly, the decision of the Examiner is
affirmed.

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Application 08/638,339
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No time period for taking any subsequent action in connection with this appeal
may be extended under 37 CFR § 1.136(a).
AFFIRMED

MICHAEL R. FLEMING )
Administrative Patent Judge )
)
)
JOSEPH F. RUGGIERO ) BOARD OF PATENT
Administrative Patent Judge )
) APPEALS AND
)
HOWARD BLANKENSHIP ) INTERFERENCES
Administrative Patent Judge )

MRF:pgg
Appeal No. 2000-0545
Application 08/638,339
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