Ex Parte Green et alDownload PDFPatent Trial and Appeal BoardMay 11, 201512883022 (P.T.A.B. May. 11, 2015) Copy Citation 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. 12/883,022 09/15/2010 David P. Green PD-207026A 4017 20991 7590 05/12/2015 THE DIRECTV GROUP, INC. PATENT DOCKET ADMINISTRATION CA / LA1 / A109 2230 E. IMPERIAL HIGHWAY EL SEGUNDO, CA 90245 EXAMINER DUFFIELD, JEREMY S ART UNIT PAPER NUMBER 2427 MAIL DATE DELIVERY MODE 05/12/2015 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 DAVID P. GREEN, CHRIS ROY, ROBERT A. BERGMAN, SCOTT M. BENOIT, JOY A. ARAI, ERIC J. BENNETT, TYSON L. WINTIBAUGH, DAVID ERIC SHANKS, and TOMMI ITEN ____________ Appeal 2013-002299 Application 12/883,022 Technology Center 2400 ____________ Before ADAM J. PYONIN, JAMES W. DEJMEK, and JESSICA C. KAISER, Administrative Patent Judges. PYONIN, Administrative Patent Judge. DECISION ON APPEAL This is a decision on appeal under 35 U.S.C. § 134(a) from a final rejection of claims 1–21. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. STATEMENT OF THE CASE Appellants’ disclosure relates to “a user interface for use with a content delivery system.” Abstract. Claims 1 and 8 are illustrative and reproduced below, with additional paragraphing: Appeal 2013-002299 Application 12/883,022 2 1. A method of managing downloads, comprising: presenting a user interface including one or more representations of one or more programs available for download to a device associated with the user interface; receiving an input from a user via the user interface to download a first one of the programs; determining a status of a download process associated with the first program, wherein the status of the download process includes a first stage in which the download process is incomplete, wherein initiation of a presentation of the first program during the first stage results in the presentation being completed without delay for further downloading during the presentation, wherein the status of the download process includes a second stage, and wherein initiation of the presentation of the first program during the second stage is likely to result in a download delay occurring during a first segment of the presentation; in response to determining that the download process has entered the first stage, altering a first characteristic of the download progress bar to include a first indication that the download process is in the first stage; and in response to determining that the download process has entered the second stage, altering the first characteristic of the download progress bar to include a second indication of the first segment of the presentation that is likely to include the download delay. 8. A tangible computer readable medium having instructions stored thereon that, when executed, cause a machine to at least: present a user interface including one or more representations of one or more programs available for download to a device associated with the user interface; Appeal 2013-002299 Application 12/883,022 3 receive an input from a user via the user interface to download a first one of the programs; determine a status of a download process associated with the first program, wherein the status of the download process includes a first stage in which the download process is incomplete, wherein an initiation of a presentation of the first program during the first stage results in the presentation being completed without delay for further downloading during the presentation, wherein the status of the download process includes a second stage, and wherein initiation of the presentation of the first program during the second stage is likely to result in a download delay occurring during a first segment of the presentation; in response to the download process entering the first stage, alter a first characteristic of a download progress bar to include a first indication that the download process is in the first stage; and in response to determining that the download process has entered the second stage, alter the first characteristic of the download progress bar to include a second indication of the first segment of the presentation that is likely to include the download delay. Claims 8–14 stand rejected under 35 U.S.C. § 101 as being directed to non-statutory subject matter. Final Action 3. Claims 1–5, 8–12, and 15–18 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Flick (US 2008/0168516 A1; July 10, 2008), Horn (US 7,240,358 B2; July 3, 2007), and Rush (US 7,131,069 B1; Oct. 31, 2006). Final Action 5. Appeal 2013-002299 Application 12/883,022 4 Claims 6, 13, and 19 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Flick, Horn, Rush, and Coburn (US 2008/0163307 A1; July 3, 2008). Final Action 11. Claims 7, 14, 20, and 21 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Flick, Horn, Rush, and Webb (US 6,934,916 B1; Aug. 23, 2005). Final Action 12. ISSUES Appellants’ arguments present us with the following issues: A. Did the Examiner err in rejecting claims 8–14 under 35 U.S.C. § 101 for being directed to non-statutory subject matter? App. Br. 6–9. B. Did the Examiner err in rejecting independent claims 1, 8, and 15 under 35 U.S.C. § 103, because the cited art “does not determine or provide an indication regarding which segment of a presentation is likely to include a download delay”? App. Br 13; see also App. Br. 16–17, 19–20. C. Did the Examiner err in rejecting dependent claims 4, 11, and 17 under 35 U.S.C. § 103, because the cited art “would not determine or provide different indications of two different segments of a media presentation in which potential interruptions are likely to occur”? App. Br. 15, see also App. Br. 18, 21. Appeal 2013-002299 Application 12/883,022 5 ANALYSIS We adopt the Examiner’s findings and conclusions (see Final Action 2–14; Ans. 2–12) as our own, and we add the following primarily for emphasis. A. Claims 8–14: Statutory Subject Matter Rejection Regarding the above Issue A, independent claim 8, as well as dependent claims 9–14, are directed to a “tangible computer readable medium having instructions stored thereon.” Appellants argue the Examiner erred in rejecting these claims for encompassing non-statutory subject matter. Appellants assert that “tangible” and “instruction stored thereon,” as recited in claim 8, limit the scope of the claims to articles of manufacture, and thus satisfy the requirements of 35 U.S.C. § 101. App. Br. 6–9. We disagree with Appellants. First, Appellants’ argument that a “medium storing instructions cannot reasonably be construed as a propagating signal or carrier wave” (App. Br. 8) is unpersuasive. Subsequent to the non-precedential decision in Ex parte Hu cited by Appellants (App. Br. 7), the Board held in a precedential decision that a recited machine-readable storage medium, having a program stored thereon, and absent an express limitation of scope to non-transitory storage media, is ineligible under § 101 because it encompasses transitory media. Ex parte Mewherter, 107 USPQ2d 1857, 1862 (PTAB 2013) (precedential). Accordingly, we agree with the Examiner’s finding that “instructions stored thereon,” as recited in claim 8, encompasses non-statutory subject matter. Appeal 2013-002299 Application 12/883,022 6 Second, regarding “tangible,” Appellants rely on In re Nuijten as support for the argument that “tangible” connotes patentable subject matter, because the Court, while holding that transitory signals were not patentable, relied on definitions that “address ‘articles’ of ‘manufacture’ as being tangible articles or commodities” (App. Br. 6 (citing In re Nuijten, 500 F.3d 1346, 1356 (Fed. Cir. 2007)). However, a statement that articles of manufacture are tangible does not support the proposition that all tangible things are articles of manufacture. Accordingly, we are not persuaded the Examiner erred in finding the broadest reasonable interpretation of a “tangible” medium includes non-statutory transitory signals (Final Action 4; Ans. 2–3). Further, the Specification, as cited by Appellants, provides only a non-limiting list of examples of storage devices and types of computer readable digital media, including “any other suitable media.” See Reply Br. 4–5 (citing Spec. ¶¶ 28, 59). Thus, the Specification does not limit a “tangible computer readable medium having instructions stored thereon” to non-transitory media. We sustain the 35 U.S.C. § 101 rejection of claims 8– 14. B. Independent Claims 1, 8, and 15: Obviousness Rejection Regarding the above Issue B, Appellants argue the Examiner “does not address or consider . . . a segment that is likely to include a download delay.” App. Br. 12. Particularly, Appellants contend “the system of Horn makes a binary. . . determination of whether uninterrupted playback is possible” rather than showing segments with delays (Reply Br. 8, see also App. Br. 11–15), and Rush discloses “breakpoints,” which are “not Appeal 2013-002299 Application 12/883,022 7 indicative of whether an interruption will occur or when (in a corresponding presentation) an interruption will occur” for different “piece[s] of content” (App. Br. 14). We find Appellants’ arguments unpersuasive because they fail to address the Examiner’s rejection, which is based on “the combination of the given references.” Ans. 9. Nonobviousness cannot be established by attacking the references individually when the rejection is predicated upon a combination of prior art disclosures. See In re Merck & Co., Inc., 800 F.2d 1091, 1097 (Fed. Cir. 1986). Here, the Examiner finds, and we agree, Flick teaches “a download status bar” and teaches “the client determines the amount of media content that is needed for uninterrupted playback based upon the average download rate.” Final Action 5–6; see also Ans. 4–5. The Examiner further finds Horn teaches “a process of determining a download stage based on the download rate, playback rate, and the amount of data stored at the receiver . . . [indicating] the segment of the content wherein playback will be delayed for downloading.” Ans. 8; see also Final Action 6 (citing Horn col. 25, ll. 13–27). We agree with the Examiner that Horn thus “shows the segment of the content where playback will be delayed” because Horn teaches determining which content blocks (i.e., segments) are likely to have interrupted playout. Ans. 5 (citing Horn Fig. 11). The Examiner also finds, and we agree, Rush teaches a “progress bar that changes from one color to the next based on when the progress bar expression reaches particular thresholds.” See Ans. 7; Final Action 7–8. The Examiner relies on a combination of these as teaching the argued limitation. Ans. 5 (combining Flick, Horn, and Rush “brings about a Appeal 2013-002299 Application 12/883,022 8 progress bar that changes color when the user may facilitate uninterrupted playback and when a segment of the presentation is likely to include a download delay”). We agree with the Examiner that the combination of Flick, Horn, and Rush teaches or suggests a download progress bar with “a second indication of the first segment of the presentation that is likely to include the download delay” as recited in claim 1. Accordingly, we sustain the Examiner’s § 103(a) rejection of independent claim 1, and the rejection of independent claims 8 and 15 which recite substantially similar limitations. C. Dependent Claims 4, 11, and 17: Obviousness Rejection Regarding the above Issue C, Appellants argue the Examiner erred in rejecting dependent claim 4, because the “combined system of Horn and Rush would not determine or provide different indications of two different segments of a media presentation in which potential interruptions are likely to occur.” App. Br. 15. Instead, the combination “would only provide a color change when a download amount for uninterrupted playback was achieved.” Id. Appellants do not persuade us the Examiner erred because Rush teaches at least three color indications (Final Action 9 (citing Rush col. 6, ll. 25–44)) and Horn teaches determining segments of a presentation that may have delays (Final Action 9; Horn Fig. 11 (showing presentation blocks with likely interruptions)). Appellants’ argument about the combined teachings of Horn, and Rush (App. Br. 15), therefore, does not fully address the teachings of the references as found by the Examiner. Because we agree with those findings, we are not persuaded the Examiner erred. Appeal 2013-002299 Application 12/883,022 9 Accordingly, we sustain the Examiner’s § 103(a) rejection of dependent claim 4, and the rejection of dependent claims 11 and 17 which recite substantially similar limitations. CONCLUSION Appellants have not persuaded us the Examiner erred in rejecting claims 8–14 under 35 U.S.C. § 101. Appellants have not persuaded us the Examiner erred in rejecting claims 1, 4, 8, 11, 15, and 17 under 35 U.S.C. § 103. Remaining dependent claims 2, 3, 5–7, 9, 10, 12–14, 16, and 18–21 are not argued separately with respect to the 35 U.S.C. § 103 rejections. See App. Br. 12, 17, 20. Accordingly, we sustain the rejections of claims 1–21 under 35 U.S.C. § 103. See 37 C.F.R. § 41.37(c)(1)(iv). DECISION We affirm the Examiner’s rejections of claims 1–21. 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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