Ex Parte Folgner et al

Patent Trial and Appeal Board

Feb 27, 2019

13359403 (P.T.A.B. Feb. 27, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/359,403 01/26/2012
135246 7590 03/01/2019
BRAKE HUGHES BELLERMANN LLP
c/o CPA Global
900 Second A venue South
Suite 600
Minneapolis, MN 55402
FIRST NAMED INVENTOR
Michael George Folgner
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
0124-014001 5170
EXAMINER
HASAN, SYED Y
ART UNIT PAPER NUMBER
2484
NOTIFICATION DATE DELIVERY MODE
03/01/2019 ELECTRONIC
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.
Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the
following e-mail address(es):
uspto@brakehughes.com
docketing@brakehughes.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte MICHAEL GEORGE FOLGNER,
RYAN BRICE CUNNINGHAM, STEPHEN BENJAMIN WEIBEL,
LAMTHUY TRAN NGUYEN, and WILLIAM HENRY DARROW1
Appeal2018-006793
Application 13/359,403
Technology Center 2400
Before CAROLYN D. THOMAS, JOSEPH P. LENTIVECH, and
SCOTT RAEVSKY, Administrative Patent Judges.
RAEVSKY, Administrative Patent Judge.
DECISION ON APPEAL
Appellants seek our review under 35 U.S.C. § 134(a) of the
Examiner's Final Rejection of claims 1, 2, 5-12, 15-22, and 25-29, all the
pending claims in the present application (see Claims Appendix). We have
jurisdiction over the appeal under 35 U.S.C. § 6(b ).
We AFFIRM-IN-PART.
1 Appellants name Twitter, Inc. as the real party in interest (App. Br. 1 ).
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Application 13/359,403
STATEMENT OF THE CASE
Appellants' invention generally relates to a method and system for
generating highlights from scored data streams. See Abstract. Claim 1,
reproduced below, is illustrative of the claimed subject matter:
1. A method, comprising:
receiving live media content;
receiving, from a plurality of users of a social publishing
content provider, a plurality of time-stamped payloads including
responses to the media content;
analyzing payload content of the plurality of time-stamped
payloads;
assigning the plurality of time-stamped payloads to media
content based on the analyzing of the payload content and based
on the time-stamping of the plurality of time-stamped payloads;
segmenting the media content into a plurality of segments
based on an analysis of a plurality of scored data points with
respect to a threshold, the plurality of scored data points
corresponding in time with the media content based on time-
stamping of the plurality of time-stamped payloads, the
segmenting including:
analyzing the plurality of scored data points using a
moving window average, including assigning a numerical score
for each of a plurality of data points in the moving window, the
assigning of the numerical score for each of the plurality of data
points including detecting a number of instances of a specified
keyword from the plurality of time-stamped payloads for each
data point in the moving window; and
generating a highlight of the media content, the highlight
including at least one segment of the plurality of segments.
App. Br. 20 (Claims Appendix).
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Appellants appeal the following rejections:
RI. Claims 1, 11 and 29 are rejected under pre-AIA 35 U.S.C.
I03(a)2 as being patentable over Morris et al. (US 8,925,001 B2, filed Sept.
12, 2008) and Takeuchi et al. (US 2004/0015458 Al, pub. Jan. 22, 2004).
R2. Claims 2, 10, 12, and 20 are rejected under 35 U.S.C. § I03(a) as
being unpatentable over Morris, Takeuchi, and Hannuksela (US
2011/0208722 Al, pub. Aug. 25, 2011).
R3. Claims 5, 6, 15, and 16 are rejected under 35 U.S.C. § I03(a) as
being unpatentable over Morris, Takeuchi, and Marin et al. (US 8,621,503
B2, pub. Dec. 31, 2013).
R4. Claims 7, 9, 17, and 19 are rejected under 35 U.S.C. § I03(a) as
being unpatentable over Morris, Takeuchi, and Gallino et al. (US
2004/0064316 Al, pub. Apr. 1, 2004).
R5. Claims 8 and 18 are rejected under 35 U.S.C. § I03(a) as being
unpatentable over Morris, Takeuchi, Gallino, and Hannuksela.
R6. Claims 21 and 22 are rejected under 35 U.S.C. § I03(a) as being
unpatentable over Morris, Takeuchi, and Vasa et al. (US 2009/0132924 Al,
pub. May 21, 2009).
R7. Claims 25-27 are rejected under 35 U.S.C. § I03(a) as being
unpatentable over Morris, Takeuchi, and Hsieh et al. (US 2011/0246528 Al,
pub. Oct. 6, 2011 ).
2 Because Appellants filed the application prior to March 16, 2013, the
version of 35 U.S.C. § 103 we apply here is the one preceding the changes
made by the America Invents Act. See Leahy-Smith America Invents Act,
Pub. L. No. 112-29, 125 Stat. 284,293, § 3(n) (2011).
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R8. Claim 28 is rejected under 35 U.S.C. § I03(a) as being
unpatentable over Morris, Takeuchi, Hsieh, and Pinkham (US 2010/0088373
Al, pub. Apr. 8, 2010).
We review the appealed rejections for error based upon the issues
identified by Appellants and in light of the arguments and evidence
produced thereon. Ex parte Frye, 94 USPQ2d 1072, 107 5 (BP AI 2010)
(precedential).
ANALYSIS
Claims 1, 2, 5-12, 15-22, and 25-29
Appellants assert that Morris and Takeuchi fail to teach or suggest all
the limitations of claim 1 and that one of ordinary skill in the art would not
have been motivated to combine Morris and Takeuchi. App. Br. 7-15. We
disagree.
First, Appellants contend that Morris and Takeuchi fail to teach or
suggest the following limitations from claim 1: "receiving ... a plurality of
time-stamped payloads including responses to the media content; [and]
analyzing payload content of the plurality of time-stamped payloads." Id. at
8-9. 3 Appellants contend that Morris fails to teach or suggest the
"receiving" limitation because "user expressions" in Morris are "simply
associated with a particular media segment and stored in the database." Id.
at 9. Appellants contend that Morris fails to teach or suggest the
"analyzing" limitation because "Morris does not disclose any further
3 We note that Appellants incorrectly assert that claim 1 recites "analyzing
payload content and time stamping of the plurality of time-stamped
payloads." App. Br. 8-9 ( emphasis added).
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analysis by the system of the user inputs, let alone any analysis of payload
content and time-stamping of the payload content." Id.
The Examiner makes several findings with respect to the "receiving"
limitation, which we adopt as our own. See Ans. 30-33. For instance, the
Examiner finds that Morris discloses receiving "payloads" because Morris
teaches "[ e Jach of the plurality of categories of expression is descriptive of a
type of expression made by a user as media content is presented." Id. at 33
( emphasis omitted). The Examiner further finds that Morris discloses claim
1 's "time stamped" payloads by disclosing that "expressions may be time
indexed to portions of media content." Id. (emphasis omitted). Moreover,
the Examiner finds that Morris discloses "including responses to the media
content" by disclosing "[ t ]he method includes accessing a database including
user expression data related to media content." Id. ( emphasis omitted).
Specifically, Morris discloses that a "media stream 458 may include a
particular program of television content and interaction among the users"
called "[e]xpressions." Id. at 7:43--45 (emphasis added). This media stream
45 8 is received at a "media device 410," which "includes a network interface
430." Id. at 7:7-8. The network interface 430 "assembles ... payloads
from a sequence or set of network packets into a stream of multimedia
content." Id. at 7:12-15 (network interface 430 is part ofMPR 124), 4:28-
35 (MPR 124 assembles payloads) (emphasis added). Morris also teaches
that the "expressions ... [are] further associated with a time stamp" or "time
index indicating that user expressions [are] related to the first segment of the
media content." Id. at 10:65-11 :4, 11 :26-27. Accordingly, we agree with
the Examiner that Morris discloses "receiving, from a plurality of users of a
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social publishing content provider, a plurality of time-stamped payloads
including responses to the media content."
With respect to the "analyzing" limitation, the Examiner finds that
Morris teaches "expressions received from users may be analyzed to
determine appropriate categories to which the expressions apply" and that
"[t]he expressions may be time indexed to portions of media content."
Ans. 33 (emphasis added and omitted) (quoting Morris, 8:64---67). We agree
with the Examiner that this quoted passage of Morris teaches or suggests
"analyzing payload content of the plurality of time-stamped payloads."
Next, Appellants contend that Morris fails to teach or suggest claim
1 's "assigning the plurality of time-stamped payloads to media content based
on the analyzing of the payload content and based on the time-stamping of
the plurality of time-stamped payloads." App. Br. 9-11. Specifically,
Appellants assert that Morris' "categories of expression, selected/entered by
the user[,] may be collected by the system disclosed in Morris, and a
particular media segment may be associated with a particular category of
expression." Id. at 10. Accordingly, Appellants argue, "Morris . .. does not
disclose or render obvious any further analysis by the system ... beyond
simple tabulation, let alone that assignment to a particular category is made
based on an analysis of payload content and on time stamping of time-
stamped payloads." Id.
The Examiner again finds that Morris discloses "expressions received
from users may be analyzed to determine appropriate categories to which the
expressions apply. The expressions may be time indexed to portions of
media content." Ans. 36 (quoting Morris, 8:64---67) (emphasis omitted).
This quoted passage of Morris teaches or suggests not only claim 1 's
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"analyzing" limitation, but also assigning expressions to portions of media
content by time-indexing the expressions based on Morris's analysis. As
such, we agree with the Examiner that the cited references teach or suggest
the claimed "assigning the plurality of time-stamped payloads to media
content based on the analyzing of the payload content and based on the time-
stamping of the plurality of time-stamped payloads."
Further, Appellants argue that Morris fails to teach or suggest claim
1 's "segmenting the media content into a plurality of segments based on an
analysis of a plurality of scored data points with respect to a threshold, the
plurality of scored data points corresponding in time with the media content
based on time-stamping of the plurality of time-stamped payloads." App.
Br. 12-13 ( emphasis omitted). In particular, Appellants argue that the
system of Morris "will simply access a segment, or segments, previously
associated with [a] category from the previously populated database." Id. at
12. Further, Appellants argue that Morris describes "a mere tabulation of
inputs, the inputs not being related to time-stamping of a plurality of time-
stamped payloads." Id. at 13.
The Examiner finds, and we agree, that Morris teaches that a
"processor ... generate[ s] a stream of media content including segments of
the media content that are associated with a selected category of expression .
. . . [T]he segments are associated with the selected category of expression
when a threshold number of user expressions are associated with the
selected category." Ans. 37 (citing Morris, 2:25-36). Specifically, Morris
discloses,
For example, a segment may be associated
with a selected category when a predetermined
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number of user expressions corresponding to that
segment are associated with the selected category.
To illustrate, when a threshold number of viewer
expressions for a segment of a movie indicate that
the segment is frightening, the segment may be
selected with a "horror" category.
Morris 10:45-51 (emphasis added).
By teaching that a "segment may be selected," Morris teaches or
suggests "segmenting the media content into a plurality of segments." See
also id. at 2:28-30 ("The user expression data includes user expression~
associated with different categorie~ of expression.") (emphasis added); 2:4--5
("The method also includes selecting a group of segment~ of media
content.") ( emphasis added). Likewise, by teaching that this segmenting
occurs "when a threshold number of viewer expressions" are identified,
Morris teaches or suggests "segmenting ... based on an analysis of a
plurality of scored data points with respect to a threshold." Moreover, as we
explained above, Morris discloses that "[ t ]he expressions may be time
indexed to portions of media content" (Morris, 8:64--67), which also teaches
or suggests "the plurality of scored data points corresponding in time with
the media content based on time-stamping of the plurality of time-stamped
payloads." Accordingly, we agree with the Examiner that the cited
references teach or suggest the claimed "segmenting the media content into a
plurality of segments based on an analysis of a plurality of scored data points
with respect to a threshold, the plurality of scored data points corresponding
in time with the media content based on time-stamping of the plurality of
time-stamped payloads."
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Finally, Appellants contend that one of ordinary skill in the art would
not have been motivated to combine Morris and Takeuchi for the limitation
reciting "analyzing the plurality of scored data points using a moving
window average, including assigning a numerical score for each of a
plurality of data points in the moving window." App. Br. 13-15.
Specifically, Appellants contend (1) that the Office "provides essentially no
reasoning" for the combination "nor a reasonable expectation of success";
(2) that "modification of Morris in this manner adds undue complexity and
cost to the system in Morris without appreciable benefit, while altering the
functionality and utility of the system in Morris"; and (3) that "Morris
provides no teaching or suggestion" that the system of Morris should be
modified. Id. at 14; Reply Br. 6.
An Examiner can satisfy his burden to show obviousness by providing
"some articulated reasoning with some rational underpinning to support the
legal conclusion of obviousness." KSR Int 'l Co. v. Teleflex Inc., 550 U.S.
398, 418 (2007). The Examiner does so here, stating:
It would have been obvious to one of
ordinary skill in the art at the time of the invention
to incorporate analyzing the plurality of scored
data points using a moving window average
including assigning a numerical score for each of a
plurality of data points in the moving window as
taught by Takeuchi et al in the system of Morris et
al in order to process the timeseries data and
improve the processing accuracy.
Final Act. 11 ( emphasis added). As such, the Final Office Action does
articulate reasoning to support the legal conclusion of obviousness.
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Therefore, we do not agree with Appellants that the Examiner provided
essentially no reasoning for the Morris-Takeuchi combination.
Significantly, Appellants do not directly challenge the substance of
the Examiner's reasoning. Instead, Appellants supply only conclusory
arguments that the combination would not have been successful or would
have "add[ ed] undue complexity and cost to the system in Morris without
appreciable benefit, while altering the functionality and utility of the system
in Morris." See App. Br. 14. These conclusory arguments are unpersuasive.
Finally, Appellants' argument that "Morris provides no teaching or
suggestion" for the Morris-Takeuchi modification (Reply Br. 6) ignores the
fact that the motivation need not be found in the references sought to be
combined. "[ A ]nalysis [ of whether the subject matter of a claim would have
been obvious] need not seek out precise teachings directed to the specific
subject matter of the challenged claim, for a court can take account of the
inferences and creative steps that a person of ordinary skill in the art would
employ." KSR, 550 U.S. at 419 (quoting In re Kahn, 441 F.3d at 988); see
also DyStar Textilfarben GMBH & Co. Deutsch/and KG v. CH Patrick
Co., and Bann Quimica LTDA, 464 F.3d 1356, 1361 (Fed. Cir. 2006) ("The
motivation need not be found in the references sought to be combined, but
may be found in any number of sources, including common knowledge, the
prior art as a whole, or the nature of the problem itself."). Therefore, we
agree with the Examiner that one of ordinary skill in the art would have been
motivated to combine Morris and Takeuchi.
We therefore sustain the Examiner's rejection of claim 1. Appellants'
arguments regarding the rejection of independent claim 11 rely on the same
arguments as for claim 1, and Appellants do not argue separate patentability
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for the dependent claims, except claims 7, 9, 17, and 19 (addressed below).
See App. Br. 15-18. We therefore also sustain the Examiner's rejection of
claims 2, 5, 6, 8, 10-12, 15, 16, 18, 20-22, and 25-29. See 37 C.F.R.
§ 4I.37(c)(l)(iv).
Claims 7 and 17
Appellants contend that Gallino fails to teach or suggest claim 7 's
"providing a real-time popularity histogram of the media content based on
the plurality of scored data points corresponding in time with time-stamping
of the media content based on the time-stamped payloads; and generating a
top-moment visualizer based on the real-time popularity histogram, the top-
moment visualizer featuring a plurality of highlights including the
highlight." App. Br. 15. Specifically, Appellants argue,
Id. at 16.
Gallina does not disclose or suggest that the
speech patterns represented by the bars 515, 520,
525, 530 and 535 shown in FIG. 5 of Gallino
could, or should, represent "a real-time popularity
histogram of the media content based on the
plurality of scored data points corresponding in
time with time-stamping of the media content
based on the time-stamped payloads," as recited in
claim 7.
The Examiner finds that "Gallino is not utilized to overcome the
entire limitation of claim 7. The combination of the disclosures of Morris,
Takeuchi[,] and Gallino [are]." Ans. 42--43. The Examiner specifically
finds that "the limitation 'providing the media content based on the plurality
of scored data points corresponding in time with time-stamping of the media
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content based on the time stamped payload' is being rejected by the
disclosure of Morris." Id. at 43. We agree, for reasons explained above
with respect to claim 1, that Morris discloses this limitation.
The Examiner then finds, and we agree, that Gallino teaches
"providing a real-time popularity histogram as disclosed in fig 5 [ of Gallino]
... and para[.] 0045 lines 1---6." Id. Specifically, Gallino discloses a
histogram (Fig. 5) where "the frequency of a specific alternative in the first
time period ... is represented by bar 515A, the frequency of the alternative
in the second time period is represented by bar 515B, and the frequency of
the alternative in the third time period is represented by bar 515C." Gallino
,r 45. Accordingly, we agree with the Examiner that at least the combination
of Morris and Gallino teaches or suggests claim 7's "providing a real-time
popularity histogram of the media content based on the plurality of scored
data points corresponding in time with time-stamping of the media content
based on the time-stamped payloads."
We also agree with the Examiner that that Morris, Takeuchi, and
Gallino teach or suggest "generating a top-moment visualizer based on the
real-time popularity histogram, the top moment visualizer featuring a
plurality of highlights including the highlight," as recited by claim 7. We
also find that Morris discloses this limitation by teaching, "Thus, the media
server 404 is adapted to generate a media stream that includes particular
content of interest to a user. For example, the media stream may include a
'best of highlights' reel from various sporting events that occurred during a
specified time period." Morris, 8:9-14.
Therefore, Appellants' arguments attacking either Morris, Takeuchi,
or Gallino in isolation do not persuasively rebut the underlying factual
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findings and ultimate legal conclusion of obviousness made by the
Examiner, which are based upon the combined teachings and suggestions of
the cited references. One cannot show non-obviousness by attacking
references individually, where the rejections are based on combinations of
references. In re Merck & Co., Inc., 800 F.2d 1091, 1097 (Fed. Cir. 1986);
see also In re Keller, 642 F.2d 413,425 (CCPA 1981) ("The test for
obviousness is not whether ... the claimed invention must be expressly
suggested in any one or all of the references. Rather, the test is what the
combined teachings of the references would have suggested to those of
ordinary skill in the art.").
Lastly, Appellants make a conclusory assertion "that there is no
teaching or suggestion that the system disclosed by Morris . .. could or
should be modified to include the portion 510 of the user interface 500 as
taught by Gallina, nor that there would be any advantage in such a
modification." App. Br. 16. The Examiner finds, and we agree, "Gallino
discloses in fig 5 a histogram which displays a visualizer featuring a
plurality of highlights including the highlight. Since Morris discloses the
scored data points for the time stamped payloads[,] therefore it would be
convenient to display the invention of Morris in the format disclosed by
Gallino." Ans. 44. We find that Appellants failed to persuasively rebut this
reason to combine.
Accordingly, we sustain the Examiner's rejection of claim 7. Because
Appellants grouped claim 17 with claim 7, we also sustain the Examiner's
rejection of claim 17. See 37 C.F.R. § 4I.37(c)(l)(iv).
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Claims 9 and 19
Appellants contend that Gallino fails to disclose claim 9' s
"determining a time offset value for each of the one or more media content
sources by comparing streams from the one or more media content sources;
and synchronizing the streams from the one or more media content sources
based on the time offset value." App. Br. 17. We agree with Appellants.
Here, the Examiner finds that Gallino teaches "comparing correlation
between streams," specifically, that "[ d]ata from one time period may be
compared with data collected in other time periods in order to identify
trends, and/or compared with the occurrence of specific events to determine
the correlation between conversational topics and those events." Ans. 45
(citing Gallino ,r 19) (emphasis omitted). However, we agree with
Appellants that "Gallina merely discloses in paragraph [0019] the tracking
of 'a time period' or 'time data' related to the duration of a voice call," and
not the "time offset value" recited in claim 9. See App. Br. 17.
We note the Examiner has not relied on Morris or Takeuchi to teach
this element. Accordingly, based on the record before us, we do not sustain
the Examiner's obviousness rejection of claim 9. For similar reasons, we do
not sustain the Examiner's rejection of claim 19.
DECISION
We affirm the Examiner's 35 U.S.C. § 103(a) rejection of claims 1, 2,
5-8, 10-12, 15-18, 20-22, and 25-29.
We reverse the Examiner's 35 U.S.C. § 103(a) rejection of claims 9
and 19.
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No time period for taking any subsequent action in connection with
this appeal may be extended under 3 7 C.F .R. § 1.13 6( a )(1 )(iv).
AFFIRMED-IN-PART
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