Ex Parte Ficco

Board of Patent Appeals and Interferences

Sep 10, 2008

09978452 (B.P.A.I. Sep. 10, 2008)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________________

Ex parte MICHAEL FICCO
____________________

Appeal 2008-1667
Application 09/978,4521
Technology Center 2600
____________________

Decided: September 10, 2008
____________________

Before KENNETH W. HAIRSTON, ROBERT E. NAPPI, and MARC S.
HOFF, Administrative Patent Judges.

HOFF, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF CASE
Appellant appeals under 35 U.S.C. § 134 from a Final Rejection of
claims 1-52 and 54-56. We have jurisdiction under 35 U.S.C. § 6(b).
We affirm-in-part.
Appellant’s invention is a system and method for aircraft multimedia
distribution. A multimedia server is provided within the aircraft, and a
multimedia communications network is connected to the multimedia server.

1 Application filed October 17, 2001. The real party in interest is The
DirecTV Group, Inc.
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Application 09/978,452

The multimedia server is configured to distribute, over the aircraft
multimedia communications network, multimedia in-flight to a passenger for
viewing, listening, and purchasing (Spec. 2). Pre-flight, the multimedia
server is also connected to an airline web server located remotely from the
aircraft.
Claims 1 and 55 are exemplary:
1. A system for aircraft multimedia distribution, comprising:
a multimedia server provided within an aircraft of an airline; and
a multimedia communications network within said aircraft coupled to said
multimedia server; and
wherein said multimedia server is configured to distribute, over said aircraft
multimedia communications network, multimedia in-flight to a device of a
passenger for purchasing by said passenger, the multimedia being selected
pre-flight via a web server in communication with the multimedia server.

55. A method for receiving multimedia, comprising:
accessing a multimedia server over a communications network within an
aircraft; displaying a menu of options corresponding to a plurality of
multimedia;
selecting, pre-flight, one of the options for purchase of a corresponding one
of the plurality of multimedia via a web server coupled to the multimedia
server; and
receiving the corresponding one of the plurality of multimedia over the
communications network.

The prior art is relied upon by the Examiner in rejecting the claims on
appeal is:
Ahmad US 5,565,908 Oct. 15, 1996
Humpleman US 5,579,308 Nov. 26, 1996
Dedrick US 5,724,521 Mar. 3, 1998
Booth US 5,835,127 Nov. 10, 1998
Neel US 5,838,314 Nov. 17, 1998
McCarten US 5,595,596 Sep. 28, 1999
Rosin US 6,028,600 Feb. 22, 2000
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Wright US 6,047,165 Apr. 4, 2000
Galipeau US 6,249,913 B1 Jun. 19, 2001
Volpe US 2001/0032028 A1 Oct. 18, 2001
Schwab US 6,353,699 B1 Mar. 5, 2002

Claims 1-5, 7, 8, 11, 13-15, 27-31, 33, 34, 37, 39-41, and 54-56 stand
rejected under 35 U.S.C. § 103 as being unpatentable over Galipeau in view
of Wright and Booth.
Claims 6 and 32 stand rejected under 35 U.S.C. § 103 as being
unpatentable over Galipeau in view of Wright, Booth, and Humpleman.
Claims 9 and 35 stand rejected under 35 U.S.C. § 103 as being
unpatentable over Galipeau in view of Wright, Booth, and Schwab.
Claims 10 and 36 stand rejected under 35 U.S.C. § 103 as being
unpatentable over Galipeau in view of Wright, Booth, and Ahmad.
Claims 12 and 38 stand rejected under 35 U.S.C. § 103 as being
unpatentable over Galipeau in view of Wright, Booth, and Rosin.
Claims 16 and 42 stand rejected under 35 U.S.C. § 103 as being
unpatentable over Galipeau in view of Wright, Booth, and McCarten.
Claims 17 and 43 stand rejected under 35 U.S.C. § 103 as being
unpatentable over Galipeau in view of Wright, Booth, McCarten, and
Ahmad.
Claims 18-21 and 44-47 stand rejected under 35 U.S.C. § 103 as being
unpatentable over Galipeau in view of Wright, Booth, and Volpe.
Claims 22-24 and 48-50 stand rejected under 35 U.S.C. § 103 as being
unpatentable over Galipeau in view of Wright, Booth, and Neel.
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Claims 25, 26, 51, and 52 stand rejected under 35 U.S.C. § 103 as
being unpatentable over Galipeau in view of Wright, Booth, Neel, and
Dedrick.
Appellant contends that the Examiner erred in rejecting the claims
because the prior art does not teach or fairly suggest the claim limitation of
multimedia selection pre-flight via a web server in communication with the
multimedia server (App. Br. 6).
Rather than repeat the arguments of Appellant or the Examiner, we
make reference to the Brief (filed January 9, 2007), the Reply Brief (filed
July 10, 2007), and the Answer (mailed May 15, 2007) for their respective
details.
ISSUE
The principal issue in the appeal before us is whether the Examiner
erred in holding that Galipeau in combination with Wright and Booth
teaches multimedia being selected pre-flight via a web server in
communication with the multimedia server, as required by the independent
claims.
FINDINGS OF FACT
The following Findings of Fact (FF) are shown by a preponderance of
the evidence.
The Invention
1. According to Appellant, he has invented a system and method
for aircraft multimedia distribution. A multimedia server is provided within
the aircraft, and a multimedia communications network is connected to the
multimedia server. The multimedia server is configured to distribute, over
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the aircraft multimedia communications network, multimedia in-flight to a
passenger for viewing, listening, and purchasing (Spec. 2). Pre-flight, the
multimedia server is also connected to an airline web server (Spec. 7).
Galipeau
2. Galipeau teaches a system for managing the distribution of
power and data to a plurality of users on board a commercial aircraft (col. 1,
ll. 17-19).
Wright
3. Wright teaches a wireless ground data link through which flight
performance data provided by airborne data acquisition equipment is stored,
compressed, encrypted, and downloaded to an airport-resident ground
subsystem (col. 2, ll. 13-16).
4. Wright teaches uploading, from a ground data link (GDL) at an
airport to the waiting aircraft, of digitized video and audio files that may be
employed as part of a passenger service/entertainment package (col. 7, ll.
16-23).
5. Wright teaches that the data terminal equipment (DTE) of GDL
segment 101 “stores and distributes information uploaded to the aircraft …
in preparation for the next flight or series of flights” (col. 7, ll. 9-15).
Booth
6. Booth teaches an “integrated electronic system and method for
providing telephony, interactive entertainment and other amenities on a
commercial vehicle” (col. 2, ll. 22-24).
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Humpleman
7. Humpleman teaches a method and apparatus for connecting
terminals to a network, in which a passive hub and direct circuit crossbar
arrangement are provided (col. 2, ll. 4-7).
Schwab
8. Schwab teaches “methods and apparatus whereby audio and
video programs from remote sites, including such programs recorded in
different formats, may be compiled into a final program or a master and
duplicated to produce an audio/video periodical or other applications” (col.
1, ll. 13-18).
Ahmad
9. Ahmad teaches “a system and method for providing
information, management, and entertainment services to a user” (col. 2, ll.
10-12).
Rosin
10. Rosin teaches “an internet on-demand system for television
presenting internet content and traditional television programming as part of
a single coherent interface” (col. 2, ll. 46-48).
McCarten
11. McCarten teaches “an airline-based distributed processing
video game and communications system associated with substantially every
seat in an airplane” (col. 1, ll. 7-9).
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Volpe
12. Volpe teaches generating a pre-recorded audio performance on
the basis of event-specific information and selected entertainment is
provided in a format suitable for broadcast at the event site (para. [0006]).
Neel
13. Neel teaches “an interactive video services system for enabling
interactive advertisements and advertiser pay-per-view and video-on-
demand video programming” (col. 1, ll. 6-9).
Dedrick
14. Dedrick teaches “method and apparatus for providing electronic
advertisements to end users in a consumer best-fit pricing manner” (col. 1, ll.
63-65).
PRINCIPLES OF LAW
“Section 103 forbids issuance of a patent when ‘the differences
between the subject matter sought to be patented and the prior art are such
that the subject matter as a whole would have been obvious at the time the
invention was made to a person having ordinary skill in the art to which said
subject matter pertains.’” KSR Int'l Co. v. Teleflex Inc., 127 S.Ct. 1727, 1734
(2007). The question of obviousness is resolved on the basis of underlying
factual determinations including (1) the scope and content of the prior art,
(2) any differences between the claimed subject matter and the prior art, (3)
the level of skill in the art, and (4) where in evidence, so-called secondary
considerations. Graham v. John Deere Co., 383 U.S. 1, 17-18 (1966). See
also KSR, 127 S.Ct. at 1734 (“While the sequence of these questions might
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be reordered in any particular case, the [Graham] factors continue to define
the inquiry that controls.”)
In KSR, the Supreme Court emphasized “the need for caution in
granting a patent based on the combination of elements found in the prior
art,” id. at 1739, and discussed circumstances in which a patent might be
determined to be obvious. In particular, the Supreme Court emphasized that
“the principles laid down in Graham reaffirmed the ‘functional approach’ of
Hotchkiss, 11 How. 248.” KSR, 127 S.Ct. at 1739 (citing Graham v. John
Deere Co., 383 U.S. 1, 12 (1966) (emphasis added)), and reaffirmed
principles based on its precedent that “[t]he combination of familiar
elements according to known methods is likely to be obvious when it does
no more than yield predictable results.” Id. The Court explained:

When a work is available in one form of endeavor, design
incentives and other market forces can prompt variations of it,
either in the same field or a different one. If a person of
ordinary skill can implement a predictable variation, § 103
likely bars its patentability. For the same reason, if 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.

Id. at 1740. The operative question in this “functional approach” is thus
“whether the improvement is more than the predictable use of prior art
elements according to their established functions.” Id.
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ANALYSIS
Claims 1-5, 7, 8, 11, 13-15, 27-31, 33, 34, 37, 39-41, and 54
Appellant argues that the none of the applied references, considered
singly or in combination, disclose selecting multimedia pre-flight via a web
server, as independent claims 1, 27, and 54 require (App. Br. 6).
Specifically, Appellant analyzes the Galipeau and Wright references
combined (along with Booth) to reject claim 1 and stresses that neither
reference discloses or suggests “the notion of enabling a passenger to make a
pre-flight selection of multimedia, regardless of whether it was uploaded
into the aircraft pre-flight” (App. Br. 8, emphasis original).
We are not persuaded by Appellant’s argument. The Examiner points
out that the claim language does not specify who or what does the
“selecting” of multimedia pre-flight (Ans. 22). The Examiner applies
Wright, which contains a teaching of uploading, from a ground data link
(GDL) at an airport to the waiting aircraft, of digitized video and audio files
that may be employed as part of a passenger service/entertainment package
(FF 4). In the Examiner’s view, the claim may be interpreted such that
airline personnel are the people doing the “selecting” of multimedia pre-
flight, in order to provide customers with a menu of multimedia selections
from which to choose while in the aircraft (Ans. 22).
Appellant urges that we are still required to interpret the claim such
that the airline passenger is the selecting agent, because the claims specify
that the passenger purchases the multimedia in the clause immediately
preceding the “selecting” recitation (Reply Br. 3). We disagree with
Appellant that such an interpretation is the “only reasonable” one (id.). First,
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the claim recites that the multimedia server is “configured to distribute …
multimedia in-flight to a device of a passenger for purchasing by said
passenger” (emphasis added), which suggests that purchasing does not occur
until the aircraft is in-flight. That a passenger should have to select a movie
or other entertainment pre-flight but not be able to engage in a purchase
transaction at that time, but must instead wait until he or she is in flight
before actually purchasing the selected entertainment, seems cumbersome at
best. Second, the fact that a passenger purchases his or her desired
multimedia in-flight does not preclude an interpretation under which airline
personnel also select, pre-flight, an array of offerings from which passengers
may select once en route to their destination.
Finally, Appellant argues that it would be speculative to conclude that
Wright describes a system wherein a selection of multimedia is being
performed pre-flight, because the system in Wright that uploads passenger
entertainment also collects and stores flight performance data generated on
board the aircraft during flight. Therefore, according to Appellant, “there is
nothing to suggest that the further storing and distributing of information is
performed at any time other than during flight” (Reply Br. 4, emphasis
original). We disagree with this interpretation, because as Appellant points
out, Wright teaches that the data terminal equipment (DTE) of GDL segment
101 “stores and distributes information uploaded to the aircraft … in
preparation for the next flight or series of flights” (FF 5). Something
occurring “in preparation for the next flight” inevitably occurs “pre-flight”
with respect to that next flight. We therefore find no teaching in Wright that
precludes its use to teach that digitized audio and video (multimedia) are
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uploaded from the data terminal equipment of the GDL segment to the
aircraft pre-flight, as the claims require.
We therefore find no error in the rejections of independent claims 1,
27, 54, nor in the rejections of claims 2-5, 7, 8, 11, 13-15, 28-31, 33, 34, 37,
and 39-41 not separately argued, under 35 U.S.C. § 103.

Claims 6 and 32
The Examiner has separately rejected dependent claims 6 and 32,
relying upon the teachings of Galipeau, Wright, and Booth to teach the
limitations of independent claims 1 and 27 and the additional teachings of
Humpleman to teach the limitations of claims 6 and 32, dependent upon
claims 1 and 27 respectively. As discussed supra, Appellant presents one
argument directed to all claims on appeal by discussing the rejection as it
applies to independent claim 1. Thus, Appellant’s arguments with respect to
these rejections are the same as presented with respect to claim 1, which (as
discussed supra) are not persuasive of error. Accordingly, we sustain the
Examiner’s rejection of claims 6 and 32 under 35 U.S.C. § 103(a) for the
reasons discussed above with respect to claim 1.
Claims 9 and 35
The Examiner has separately rejected dependent claims 9 and 35,
relying upon the teachings of Galipeau, Wright, and Booth to teach the
limitations of independent claims 1 and 27 and the additional teachings of
Schwab to teach the limitations of claims 9 and 35, dependent upon claims 1
and 27 respectively. As discussed supra, Appellant presents one argument
directed to all claims on appeal by discussing the rejection as it applies to
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independent claim 1. Thus, Appellant’s arguments with respect to these
rejections are the same as presented with respect to claim 1, which (as
discussed supra) are not persuasive of error. Accordingly, we sustain the
Examiner’s rejection of claims 9 and 35 under 35 U.S.C. § 103(a) for the
reasons discussed above with respect to claim 1.
Claims 10 and 36
The Examiner has separately rejected dependent claims 10 and 36,
relying upon the teachings of Galipeau, Wright, and Booth to teach the
limitations of independent claims 1 and 27 and the additional teachings of
Ahmad to teach the limitations of claims 10 and 36, dependent upon claims
1 and 27 respectively. As discussed supra, Appellant presents one argument
directed to all claims on appeal by discussing the rejection as it applies to
independent claim 1. Thus, Appellant’s arguments with respect to these
rejections are the same as presented with respect to claim 1, which (as
discussed supra) are not persuasive of error. Accordingly, we sustain the
Examiner’s rejection of claims 10 and 36 under 35 U.S.C. § 103(a) for the
reasons discussed above with respect to claim 1.
Claims 12 and 38
The Examiner has separately rejected dependent claims 12 and 38,
relying upon the teachings of Galipeau, Wright, and Booth to teach the
limitations of independent claims 1 and 27 and the additional teachings of
Rosin to teach the limitations of claims 12 and 38, dependent upon claims 1
and 27 respectively. As discussed supra, Appellant presents one argument
directed to all claims on appeal by discussing the rejection as it applies to
independent claim 1. Thus, Appellant’s arguments with respect to these
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rejections are the same as presented with respect to claim 1, which (as
discussed supra) are not persuasive of error. Accordingly, we sustain the
Examiner’s rejection of claims 12 and 38 under 35 U.S.C. § 103(a) for the
reasons discussed above with respect to claim 1.
Claims 16 and 42
The Examiner has separately rejected dependent claims 16 and 42,
relying upon the teachings of Galipeau, Wright, and Booth to teach the
limitations of independent claims 1 and 27 and the additional teachings of
McCarten to teach the limitations of claims 16 and 42, dependent upon
claims 1 and 27 respectively. As discussed supra, Appellant presents one
argument directed to all claims on appeal by discussing the rejection as it
applies to independent claim 1. Thus, Appellant’s arguments with respect to
these rejections are the same as presented with respect to claim 1, which (as
discussed supra) are not persuasive of error. Accordingly, we sustain the
Examiner’s rejection of claims 16 and 42 under 35 U.S.C. § 103(a) for the
reasons discussed above with respect to claim 1.
Claims 17 and 43
The Examiner has separately rejected dependent claims 17 and 43,
relying upon the teachings of Galipeau, Wright, and Booth to teach the
limitations of independent claims 1 and 27 and the additional teachings of
McCarten and Ahmad to teach the limitations of claims 17 and 43,
dependent upon claims 1 and 27 respectively. As discussed supra, Appellant
presents one argument directed to all claims on appeal by discussing the
rejection as it applies to independent claim 1. Thus, Appellant’s arguments
with respect to these rejections are the same as presented with respect to
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claim 1, which (as discussed supra) are not persuasive of error.
Accordingly, we sustain the Examiner’s rejection of claims 17 and 43 under
35 U.S.C. § 103(a) for the reasons discussed above with respect to claim 1.
Claims 18-21 and 44-47
The Examiner has separately rejected dependent claims 18-21 and 44-
47, relying upon the teachings of Galipeau, Wright, and Booth to teach the
limitations of independent claims 1 and 27 and the additional teachings of
Volpe to teach the limitations of claims 18-21 and 44-47, dependent upon
claims 1 and 27 respectively. As discussed supra, Appellant presents one
argument directed to all claims on appeal by discussing the rejection as it
applies to independent claim 1. Thus, Appellant’s arguments with respect to
these rejections are the same as presented with respect to claim 1, which (as
discussed supra) are not persuasive of error. Accordingly, we sustain the
Examiner’s rejections of claims 18-21 and 44-47 under 35 U.S.C. § 103(a)
for the reasons discussed above with respect to claim 1.
Claims 22-24 and 48-50
The Examiner has separately rejected dependent claims 22-24 and 48-
50, relying upon the teachings of Galipeau, Wright, and Booth to teach the
limitations of independent claims 1 and 27 and the additional teachings of
Neel to teach the limitations of claims 22-24 and 48-50, dependent upon
claims 1 and 27 respectively. As discussed supra, Appellant presents one
argument directed to all claims on appeal by discussing the rejection as it
applies to independent claim 1. Thus, Appellant’s arguments with respect to
these rejections are the same as presented with respect to claim 1, which (as
discussed supra) are not persuasive of error. Accordingly, we sustain the
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Examiner’s rejection of claims 22-24 and 48-50 under 35 U.S.C. § 103(a)
for the reasons discussed above with respect to claim 1.
Claims 25, 26, 51, and 52
The Examiner has separately rejected dependent claims 25, 26, 51,
and 52, relying upon the teachings of Galipeau, Wright, and Booth to teach
the limitations of independent claims 1 and 27 and the additional teachings
of Neel and Dedrick to teach the limitations of claims 25, 26, 51, and 52,
dependent upon claims 1 and 27 respectively. As discussed supra, Appellant
presents one argument directed to all claims on appeal by discussing the
rejection as it applies to independent claim 1. Thus, Appellant’s arguments
with respect to these rejections are the same as presented with respect to
claim 1, which (as discussed supra) are not persuasive of error.
Accordingly, we sustain the Examiner’s rejection of claims 25, 26, 51, and
52 under 35 U.S.C. § 103(a) for the reasons discussed above with respect to
claim 1.
Claims 55 and 56
We select claim 55 as representative of this group, pursuant to our
authority under 37 C.F.R. § 41.37(c)(1)(vii).
Claim 55 recites “selecting, pre-flight, one of the options for purchase
of a corresponding one of a plurality of multimedia via a web server coupled
to the multimedia server.” Unlike the language of independent claims 1, 27,
and 54, the language of claim 55 is not susceptible to the interpretation that
airline personnel select an array of multimedia offerings to be presented to
passengers, as we discussed with respect to claim 1, supra. Because claim 55
calls for the selection of one available option, and specifies that it is for
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purchase, the only reasonable interpretation of claim 55 is that a paying
passenger, and not an agent of the airline, is the individual doing the
selecting. We agree with Appellant that the applied references do not teach
or fairly suggest this limitation.
Accordingly, we find error in the Examiner’s rejection of claim 55, as
well as claim 56 dependent therefrom, under 35 U.S.C. § 103.
CONCLUSION OF LAW
We conclude that Appellant has shown that the Examiner erred in
rejecting claims 55 and 56 under 35 U.S.C. § 103. We further conclude that
Appellant has not shown that the Examiner erred in rejecting claims 1-52
and 54 under 35 U.S.C. § 103.
DECISION
The Examiner’s rejection of claims 1-52 and 54 is affirmed. The
Examiner’s rejection of claims 55 and 56 is reversed.
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).

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AFFIRMED-IN-PART

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