Ex Parte Bushlow et al

Patent Trial and Appeal Board

Mar 24, 2014

10875024 (P.T.A.B. Mar. 24, 2014)

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.
10/875,024 06/22/2004 Robert J. Bushlow PD-201131 9712
20991 7590 03/25/2014
THE DIRECTV GROUP, INC.
PATENT DOCKET ADMINISTRATION
CA / LA1 / A109
2230 E. IMPERIAL HIGHWAY
EL SEGUNDO, CA 90245
EXAMINER
SHEPARD, JUSTIN E
ART UNIT PAPER NUMBER
2424
MAIL DATE DELIVERY MODE
03/25/2014 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 ROBERT J. BUSHLOW, GEORGE ADLER,
and STEPHEN H. KIYABU
____________

Appeal 2011-008533
Application 10/875,024
Technology Center 2400
____________

Before JOSEPH F. RUGGIERO, MAHSHID D. SAADAT,
and DANIEL N. FISHMAN, Administrative Patent Judges.

SAADAT, Administrative Patent Judge.

DECISION ON APPEAL

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Appellants appeal under 35 U.S.C. § 134(a) from a non-final rejection
of claims 1-35, which are all the claims pending in this application. We
have jurisdiction under 35 U.S.C. § 6(b).
We affirm.

STATEMENT OF THE CASE
Introduction
Claim 1, which is illustrative of the invention, reads as follows:
1. A method of detecting when triggering events
occur in program materials transmitted in one or more data
streams, comprising:
(a) receiving, at each of one or more receivers, one or
more data streams containing program materials from a
plurality of content providers or other sources;
(b) extracting, in each of the receivers, one or more audio
portions from the program materials transmitted in the received
data streams;
(c) detecting, in a decoder coupled to each of the
receivers, a sequence of one or more Dual Tone Multiple
Frequency (DTMF) signals encoded within the extracted audio
portions from the program materials transmitted in the received
data streams, wherein the sequence of DTMF signals represent
the triggering events occurring in the program materials
transmitted in the received data streams, and outputting data
representative of the detected sequence of DTMF signals; and
(d) logging, in a computer, the data representative of the
detected sequence of DTMF signals into a database for later
retrieval and presentation to users for use in monitoring the
program materials transmitted in the received data streams.
The Examiner’s Rejections
Claims 1, 2, 5, 14, 15, 18, 27, 28, and 31 stand rejected under
35 U.S.C. § 103(a) as being unpatentable over Thomas (US 5,481,294),
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Khusheim (US 2003/0221191 A1), and Gatz (US 2002/0049806 A1). (See
Ans. 4-6).
Claims 3, 16, and 29 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Thomas, Khusheim, Gatz, and Gerace (US 5,848,396).
(See Ans. 6-7).
Claims 4, 6, 7, 10, 17, 19, 20, 23, 30, 32, and 33 stand rejected under
35 U.S.C. § 103(a) as being unpatentable over Thomas, Khusheim, Gatz,
and Katta (US 6,353,444 B1). (See Ans. 7-9).1
Issue on Appeal
Has the Examiner erred in rejecting the claims as being obvious over
Thomas, Khusheim, and Gatz, or over Thomas, Khusheim, and Gatz in
various combinations with the other cited prior art, because the combination
of references does not teach or suggest the disputed features recited in
Appellants’ claims?

ANALYSIS
We have reviewed the Examiner’s rejections in light of Appellants’
arguments that the Examiner has erred. We disagree with Appellants’
conclusions. We adopt as our own the findings and reasons set forth by the
Examiner in the action from which this appeal is taken and the reasons set
forth by the Examiner in the Examiner’s Answer in response to Appellants’

1 Appellants do not present separate arguments in support of the patentability
for the remaining claims over Thomas, Khusheim, and Gatz in view of
Hwang (US 2004/0205815 A1), Hayward (US 2004/0051812 A1), or Lu
(US 6,647,548 B1), allowing the remaining claims to stand or fall with their
respective base claims (App. Br. 19, 21-23).
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Appeal Brief (see Ans. 12-20). However, we highlight and address specific
findings and arguments for emphasis as follows.
Claims 1, 14, and 27
1. Appellants contend that Thomas merely describes an audience
measurement system based on ancillary codes from the audio portion of the
program, which uses a household metering apparatus and a reference
apparatus including microphones to record the codes within the broadcast
signal (App. Br. 15). Appellants argue that, in contrast with the teachings of
Thomas, their claims are directed to “detecting when triggering events occur
in program materials transmitted in a data stream, rather than Thomas’s
audience measurements” (App. Br. 16; Reply Br. 4).
We agree with the Examiner that Thomas discloses other systems,
such as the one depicted in Figure 2A and described in column 9, where a
local metering system covers a number of household systems and decodes
the audio signatures (Ans. 13-14). As further stated by the Examiner (Ans.
14), detecting and reading the codes included in the audio portion of the
signal meet the claimed triggering events in view of the broadest reasonable
interpretation of the disputed term in light of Appellants’ Specification.
That is, while Appellants’ Specification discusses one or more Dual Tone
Multiple Frequency (DTMF) signals representing the events (Spec. 6:10-16),
Thomas was relied on for disclosing the claimed steps (a) to (c) whereas
Khusheim was relied on for teaching DTMF signals in broadcast television
and radio programs to signal events such as advertisements.
2. Appellants further assert Khusheim does not transmit the
DTMF signal to identify a commercial message within the program material
(App. Br. 17). We again agree with the Examiner’s reasoning (Ans. 16) and
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note that the teaching value of Khusheim is the use of DTMF in Thomas to
mark the programs that are to be monitored. Similarly, the Examiner
properly responds to Appellants’ contention regarding Khusheim’s alleged
failure to log data related to DTMF signals into a database, for which the
Examiner relied on Gatz (id.). We also agree with the Examiner (Ans. 15-
16) that Khusheim does describe using DTMF signals in the audio portion of
program materials broadcast in television and radio environments (see
Khusheim ¶ [0008]).
Additionally, we observe that contrary to Appellants’ position (Reply
Br. 5), all of the features of the secondary reference need not be bodily
incorporated into the primary reference (see In re Keller, 642 F.2d 413, 425
(CCPA 1981)), and the artisan is not compelled to blindly follow the
teaching of one prior art reference over the other without the exercise of
independent judgment (see Lear Siegler, Inc. v. Aeroquip Corp., 733 F.2d
881, 889 (Fed. Cir. 1984)).
3. Lastly, Appellants challenge the proposed combination by
arguing there is no motivation or any reasonable expectation of success in
using DTMF in program materials as explained by Jensen, a reference that is
not involved in the appealed rejections that are before this panel (App. Br.
17-18). Appellants additionally contend Gatz is not analogous art because it
discloses using a database in an access server for controlling the use of
Internet rather than logging data representative of a detected sequence of
DTMF (App. Br. 18).
In response, the Examiner has identified the relevant portions of each
reference and has properly concluded that the proposed combination would
result in the claimed features. The Examiner has specifically provided
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sufficient explanation with corresponding citations to various portions of
Thomas and Gatz for teaching or suggesting each disputed feature (Ans. 16-
17). We specifically agree with the Examiner’s assertion that Jensen is not
relied on in any of the instant rejections (Ans. 16) and concur with the
Examiner as to how Gatz discusses monitoring other types of information
(Ans. 17 (citing Gatz ¶ [0087])). We also observe that the monitoring
method disclosed in Gatz provides the similar advantage of logging
monitoring data in a database for later use by the users to the system of
Thomas.
Claims 3, 16, and 29
Appellants contend that Gerace merely discusses storing information
indicative of screen views displayed to a user by a user history object,
whereas these claims require “the sequence of DTMF signals identifies
advertisements in the program materials” (App. Br. 20).
We also agree with the Examiner’s findings and conclusion that
Gerace was relied on for teaching different logging categories of the viewed
program (Ans. 6, 17; see also Gerace, col. 7, ll. 4-22).
Claims 4, 6, 7, 17, 19, 20, 30, 32, and 33
Appellants contend that “Katta merely refers to the content of user
information stored in a user information storage unit,” whereas claims 4, 17,
and 30 require “the sequence of DTMF signals represents a particular
category of program material”; claims 6, 19, 32 require “the sequence of
DTMF signals represents a type of programming offered by the content
provider”; and claims 7, 20, and 33 recite “the . . . logging further comprises
. . . logging data representative of the date, time and channel associated with
the sequence of DTMF signals into the database” (App. Br. 20-21).
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Similarly, we agree with the Examiner’s findings and conclusion that
Figure 30 of Katta discloses the various recited programming
types/categories and content (Ans. 7-8, 18-19).

CONCLUSIONS
On the record before us, we conclude that, because the references
teach or suggest all the disputed claim limitations, the Examiner has not
erred in rejecting claims 1, 14, and 27 as being obvious over Thomas,
Khusheim, and Gatz; claims 3, 16, and 29 as being obvious over Thomas,
Khusheim, Gatz, and Gerace; or claims 4, 6, 7, 17, 19, 20, 30, 32, and 33 as
being obvious over Thomas, Khusheim, Gatz, and Katta. Accordingly, we
sustain the 35 U.S.C. § 103(a) rejections of claims 1, 3, 4, 6, 7, 14, 16, 17,
19, 20, 27, 29, 30, 32, and 33, as well as the remaining claims falling
therewith.

DECISION
The decision of the Examiner rejecting claims 1-35 is affirmed.
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

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