Ex Parte Hayward

Patent Trial and Appeal Board

Jun 16, 2016

12943724 (P.T.A.B. Jun. 16, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO.
12/943,724
100692 7590
AOL Inc./Finnegan
FILING DATE
11/10/2010
06/20/2016
901 New York Ave., NW
Washington, DC 20001
FIRST NAMED INVENTOR
Monte Duane HAYWARD
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.
10587.0147-01000 4233
EXAMINER
CHANG, TIJLIAN
ART UNIT PAPER NUMBER
2455
NOTIFICATION DATE DELIVERY MODE
06/20/2016 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):
regional-desk@finnegan.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte MONTE DUANE HAYWARD
Appeal2014-003207
Application 12/943,724
Technology Center 2400
Before ROBERT E. NAPPI, CARLA M. KRIVAK, and
JEFFREY A. STEPHENS, Administrative Patent Judges.
STEPHENS, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellant1 seeks our review under 35 U.S.C. § 134(a) from the
Examiner's final rejection of claims 34-52. Claims 1-33 have been
canceled. We have jurisdiction under 35 U.S.C. § 6(b ).
We affirm.
1 The real party in interest is identified as AOL Inc. (App. Br. 1.)
Appeal2014-003207
Application 12/943,724
Claimed Subject Matter
The invention generally relates to collecting data in connection with
retrieval of a media file using an embedded media player page. (Title;
Abstract.) Claim 34, reproduced below, is illustrative:
34. A method of collecting data associated with media files,
compnsmg:
receiving, at a log server, a plurality of time stamps
transmitted from a media device at a plurality of time intervals
while an embedded media player page is open on the media
device, the embedded media player page including a media
player for playing back a media file;
storing, at the log server, the time stamps in association
with a play back of the media file;
determining, at the log server, a length of time the
embedded media player page was open on the media device by
calculating a difference between a first time stamp and a last time
stamp of the plurality of time stamps;
determining whether the embedded media player page was
open on the media device until the media file was played through
completion by comparing the length of time the embedded media
player page was open on the media device and a playing length
of the media file;
recording, at the log server, a number of times that the
media file has been played back; and
generating popularity data associated with the media file
based on the number of times that the media file has been played
back and information concerning whether the media file was
played through completion for each play back of the media file.
Rejections
Claims 34, 35, 41--46, 49, and 50 stand rejected under
35 U.S.C. § 103(a) as obvious over Feit (US 6,178,439 Bl; Jan. 23, 2001),
Block et al. (US 6,983,324 Bl; Jan. 3, 2006) ("Block"), Muramatsu (JP
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Application 12/943,724
2000-137667 A; May 16, 2000), Culliss (US 6,078,916; June 20, 2000), and
Le Vine (US 6,961,714 Bl; Nov. 1, 2005). (Final Act. 2---6.)
Claims 36, 37, 47, and 51 stand rejected under 35 U.S.C. § 103(a) as
obvious over Feit, Block, Muramatsu, Culliss, Le Vine, and Robinson (US
2001/0054001 Al; Dec. 20, 2001). (Final Act. 6-7.)
Claim 38 stands rejected under 35 U.S.C. § 103(a) as obvious over
Feit, Block, Muramatsu, Culliss, Le Vine, Robinson, and Addante (US
2002/0004733 Al; Jan. 10, 2002). (Final Act. 7.)
Claims 39, 40, 48, and 52 stand rejected under 35 U.S.C. § 103(a) as
obvious over Feit, Block, Muramatsu, Culliss, Le Vine, and Applicant
Admitted Prior Art (hereinafter "AAPA").2 (Final Act. 8.)
ANALYSIS
We have reviewed the Examiner's rejections in light of Appellant's
arguments the Examiner erred (App. Br. 7-15; Reply Br. 2-9). We are not
persuaded by Appellant's arguments. We adopt as our own the findings and
reasons set forth by the Examiner in the action from which this appeal is
taken and as set forth by the Examiner in the Answer (Ans. 10-13). We
highlight and address specific arguments and findings for emphasis as
follows.
Appellant argues Culliss fails to teach or suggest determining whether
the embedded media player page was open on the media device until the
media file was played through completion by comparing the length of time
the embedded media player page was open on the media device and a
2 The Examiner cites, as the relevant admission, page 2 of US provisional
application 60/242,848, filed Oct. 24, 2000. (Final Act. 8.)
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Application 12/943,724
playing length of the mediajUe, as recited in claim 34. (App. Br. 8-11;
Reply Br. 2---6.)
First, Appellant contends altering scores based on a user "reading the
entire article" (App. Br. 9 (quoting Culliss 28:66)) is not "determining
whether the embedded media player page was open ... until the media
file was played through completion" (id.), as claimed. We are not
persuaded by Appellant's argument because we agree with the Examiner's
finding that Culliss teaches the term "articles" may refer to audio, video, or
any type of information made available over the Internet. (Final Act. 9
(citing Culliss 1:25-35).) Appellant acknowledges this finding, without
conceding it is correct, but also without providing persuasive argument or
evidence to the contrary. (See App. Br. 9; Reply Br. 3.) Thus, we are not
persuaded of error in the rejection on this basis. We note also that the same
sentence of Culliss that teaches "reading the entire article" also explicitly
refers to "opening the article for viewing or listening" (Culliss 28:63).
Appellant next contends Culliss does not teach comparing the length
of time the embedded media player page was open on the media device and
a playing length of the media file, as recited in claim 34, because Culliss
teaches "'reading the entire article or reading the article for a predetermined
length of time' is 'determined as having the article open for a predetermined
length of time while scrolling through the article on the screen."' (App.
Br. 10 (quoting Culliss 28:63-29:2); Reply Br. 3.) As discussed above,
Culliss teaches the article may be video or audio. We agree with the
Examiner's finding that Culliss teaches the claimed comparing step (Final
Act. 4) because one of ordinary skill in the art would have understood
scrolling through the article on the screen to be an example of how a user
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Application 12/943,724
interacts with a written article, and that playing a video or audio media file
as taught in Culliss is accomplished with a media player rather than scrolling
through text. In addition, the Examiner finds Culliss teaches the article can
be inspected for a predetermined or maximum allowable amount of time,
and the skilled artisan "would have recognized that if the time inspecting the
article is greater than the length of the article, the user read the entire
article." (Advisory Act. 2 (citing Culliss 13:45---67); Ans. 11 (citing Culliss
14:25-30, 14:45-55).) We agree.
Appellant contends column 13, lines 45---67, of Culliss does not relate
to determining whether a user has read an entire article, but rather relates to
adjusting a length of time an article was viewed based on the length of the
article to avoid disproportionately large score adjustments. (App. Br. 10-11;
Reply Br. 5.) We are not persuaded by Appellant's arguments, which do not
address the Examiner's findings regarding what Culliss would have
suggested to one of ordinary skill in the art. We agree with the Examiner's
finding that it would have been obvious to use Culliss' s comparison to
determine whether an article was played through completion as required by
claim 34. (Ans. 11.) Appellant does not persuasively rebut the Examiner's
findings or reasoning regarding Culliss.
Appellant further argues Culliss and Le Vine fail to teach or suggest
generating popularity data associated with the media file based on the
number of times that the media file has been played back and information
concerning whether the media file was played through completion for each
play back of the media file, as recited in claim 34. (App. Br. 11-13; Reply
Br. 7-8.) According to Appellant, Culliss does not teach generating
popularity data based on the number of times that the media file has been
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Application 12/943,724
played back because Culliss does not teach recording, at the log server, a
number of times the media file has been played back. (App. Br. 12; Reply
Br. 7-8.) We agree with the Examiner, however, that Culliss adjusts an
article score or popularity data based on the actions of opening the article for
listening and consuming the entire article, and, therefore, "the score is
adjusted ... each time one of the actions occur (i.e., each time the article is
opened and/or each time the entire article is read)." (Ans. 12 (citing Culliss
28:60-67).) Appellant has not persuasively rebutted the Examiner's specific
findings by identifying specific errors; rather Appellant's arguments merely
restate claim language without explanation of error in the Examiner's
findings. (App. Br. 12; Reply Br. 7-8.) In addition, Appellant's argument is
not commensurate with the scope of claim 34, which does not require the
number of playbacks for generating popularity data to be obtained from the
log server. The Examiner has relied on Le Vine for teaching a number of
playbacks recorded at a log server (Final Act. 4), and Appellant does not
persuasively rebut the Examiner's findings regarding the combined
teachings of the references.
Accordingly, Appellant's arguments directed to the Examiner's
rejection of claim 34 have not persuaded us of error in the Examiner's
rejection, and we sustain the rejection of claim 34 under 35 U.S.C. § 103(a)
as obvious over Feit, Block, Muramatsu, Culliss, and Le Vine. For the same
reasons, we sustain the rejections of claims 35, 41--46, 49, and 50, which are
not argued separately with particularity. (App. Br. 13.)
Appellant's arguments directed to the obviousness rejections of
dependent claims 36--40, 47, 48, 51, and 52 assert the rejections of these
claims are in error for the same reasons as independent claims 34, 45, and
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Application 12/943,724
49. (App. Br. 14, 15.) Thus, for the same reasons as claims 34, 45, and 49,
we sustain the rejections under 35 U.S.C. § 103(a) of (I) claims 36, 37, 47,
and 51 as obvious over Feit, Block, Muramatsu, Culliss, Le Vine, and
Robinson, (2) claim 38 as obvious over Feit, Block, Muramatsu, Culliss,
Le Vine, Robinson, and Addante, and (3) claims 39, 40, 48, and 52 as
obvious over Feit, Block, Muramatsu, Culliss, Le Vine, and AAP A.
DECISION
We affirm the Examiner's decision rejecting claims 34--52.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(l )(iv).
AFFIRMED
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