Ex Parte Inayatullah et al

Patent Trial and Appeal Board

Nov 22, 2017

14502749 (P.T.A.B. Nov. 22, 2017)

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.
14/502,749 09/30/2014 Azfar Inayatullah 311062-1 (NBCU:0113) 3410
12640 7590 11/22/2017
NBCUniversal Media, LLC
c/o Fletcher Yoder, P.C.
PO Box 692289
Houston, TX 77269-2289
EXAMINER
ALAM, MUSHFIKH I
ART UNIT PAPER NUMBER
2426
MAIL DATE DELIVERY MODE
11/22/2017 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 AZFAR INAYATULLAH, SANJAY MACWAN,
and SOWMYA GOTTIPATI
(Applicant: NBCUniversal Media, LLC)

____________

Appeal 2017-007796
Application 14/502,749
Technology Center 2400
____________

Before BRUCE R. WINSOR, IRVIN E. BRANCH, and
DAVID J. CUTITTA II, Administrative Patent Judges.

CUTITTA, Administrative Patent Judge.

DECISION ON APPEAL
This is an appeal under 35 U.S.C. § 134(a) from the Final Rejection of
claims 1–20, all of the pending claims of the application. We have
jurisdiction over this appeal under 35 U.S.C. § 6(b).
We affirm.

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STATEMENT OF THE CASE
Invention
According to Appellants, the invention relates to “providing digital
content to a target audience.” Spec. ¶ 5.1

Exemplary Claim
Claims 1, 11, and 17 are independent claims. Claims 1 and 7 are
representative and are reproduced below with disputed limitations italicized:
1. A method for providing digital content to a target
audience, comprising:
monitoring audience-related data indicative of a specific
target audience as an indication of potential interests of the target
audience;
monitoring device-related data indicative of a content
playback device available to the target audience, the device-
related data being collected with respect to a plurality of different
devices available to the target audience;
referencing content-related data related to available
content;
determining whether any element of available content
matches the target audience based upon the audience-related data
and the device-related data;
prioritizing a particular one of the plurality of different
devices available to the target audiences based upon the content-
related data, the audience-related data, the device-related data,
or any combination thereof; and

1 This Decision refers to: (1) Appellants’ Specification filed September 30,
2014 (“Spec.”); (2) the Final Office Action (“Final Act.”) mailed February
29, 2016; (3) the Appeal Brief (“Appeal Br.”) filed October 31, 2016; (4) the
Examiner’s Answer (“Ans.”) mailed February 2, 2017; and (5) the Reply
Brief (“Reply Br.”) filed April 3, 2017.
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providing, at the prioritized particular one of the plurality of
different devices, a selected element of the available content
based upon a match of the content-related data and upon the
audience-related data and the device-related data.

7. The method of claim 1, wherein the audience-
related data or the device-related data comprises data indicative
of whether the target audience is currently using a specific
playback device.

Appeal Br. 16–17.

REFERENCES AND REJECTIONS
Claims 1–4, 7–9, 11–13, 15–18, and 20 stand rejected under 35 U.S.C.
§ 103 as being unpatentable over the combination of Cox et al. (US
2013/0254787 A1; published Sept. 26, 2013), Roberts et al. (US
2012/0304233 A1; published Nov. 29, 2012) and Kunjithapatham et al. (US
8,510,737 B2; published Aug. 13, 2013). Final Act. 2–6.
Claims 5, 6, 10, 14, and 19 stand rejected under 35 U.S.C. § 103 as
being unpatentable over the combination of Cox, Roberts, and
Kunjithapatham, and Hardy (US 2014/0165094 A1; published June 12,
2014). Final Act. 6–8.
Our review in this appeal is limited only to the above rejections and
the issues raised by Appellants. Arguments not made are waived. See
MPEP § 1205.02; 37 C.F.R. §§ 41.37(c)(1)(iv), 41.39(a)(1).

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ANALYSIS
We have considered all of Appellants’ arguments and any evidence
presented. We disagree with Appellants’ arguments, and we adopt as our
own: (1) the findings and legal conclusions set forth by the Examiner in the
Final Office Action (2–8) from which this appeal is taken, and (2) the
findings, legal conclusions, and explanations set forth in the Answer (2–9) in
response to Appellants’ arguments. We highlight and address specific
findings and arguments for emphasis in our analysis below.

Rejection of Claims 1–4, 7–9, 11–13, 15–18, and 20 Under § 103
The Examiner finds the combination of Cox and Kunjithapatham
teaches or suggests “prioritizing a particular one of the plurality of different
devices available to the target audiences based upon the content-related data,
the audience-related data, the device-related data, or any combination
thereof,” as recited in representative claim 1. Final Act. 11.
Appellants argue Kunjithapatham “facilitates prioritization of tasks
available through the devices in a home network” (Appeal Br. 9) and “the
examiner’s position that the prioritized tasks per device of Kunjithapatham
is analogous to prioritized devices, is clearly erroneous” (Appeal Br. 10).
We find Appellants’ arguments unpersuasive. We agree with the
Examiner’s finding that “Kunjithapatham discloses prioritization of a
particular device and task based on a score.” Ans. 4. That is, we agree that
by providing a score for each individual device, Kunjithapatham teaches
prioritizing a device. Namely, Kunjithapatham’s Task Generation module
70 calculates and provides “scores for individual devices that make-up the
task (e.g., devicel (score 100), device2 (score 7), etc.), to the Prioritization
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module 64” to determine task scores. Kunjithapatham 5:13–20. Although
Kunjithapatham’s device rankings are secondary to the task rankings argued
by Appellants, Kunjithapatham still describes prioritizing devices to
determine the correct device for a given task. For example, Kunjithapatham
states “[w]ithin that score level, the items are ranked on secondary factors
such as device scores. As such, the best devices appear first for the level of
contextual match (i.e., those matching fully the policy for that level may be
ranked higher than others that match only part of the policy).”
Kunjithapatham 4:19–25 (emphasis added). Although we agree with
Appellants that Kunjithapatham describes prioritization of a device in the
context of performing a particular task, Appellants fail to persuasively
establish why this does not teach or suggest “prioritizing a particular one of
the plurality of different devices,” as recited in claim 1.
The Examiner finds Cox teaches or suggests “providing, at the
prioritized particular one of the plurality of different devices, a selected
element of the available content,” as recited in claim 1. Final Act. 3 (citing
Cox ¶¶ 31, 111–115). Specifically, the Examiner finds Cox’s “ability to
recognize a powered on device makes this device a priority (vs. a device that
is powered off). Thus, Cox’s device-related data, is indeed, a basis for
providing content to a prioritized device.” Ans. 8.
Appellants argue “Cox’s supposed device-related data (e.g., whether
the device is powered on) is not a basis for providing content ‘at the
prioritized particular one of the plurality of different devices,’ as recited by
the independent claims.” Appeal Br. 11. “Indeed, the examiner has not
provided any indication where content is provided to a prioritized one of a
plurality of device, based upon the power on determination.” Reply Br. 4.
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We find Appellants’ arguments unpersuasive. We agree with the
Examiner’s finding that Cox teaches, or at least suggests, “providing, at the
prioritized particular one of the plurality of different devices, a selected
element of the available content,” as recited in claim 1 (Final Act. 3);
namely by “select[ing] ads for delivery” to a prioritized device, i.e., a device
that is determined as being “on” (Cox ¶ 31).
Appellants have not shown error in the Examiner’s factual findings or
conclusion of obviousness and so we sustain the 35 U.S.C. § 103 rejection of
representative independent claim 1. We also sustain the Examiner’s
rejection of independent claims 11 and 17, which recite similar limitations
and are not argued separately. See Appeal Br. 8. Dependent claims 2–4, 7–
9, 12, 13, 15, 16, 18, and 20 are not argued separately, and thus, fall with
their respective independent claims. Appeal Br. 8–13.

Rejection of Claims 7 and 15 Under § 103
The Examiner finds Cox teaches or suggests “wherein the audience-
related data or the device-related data comprises data indicative of whether
the target audience is currently using a specific playback device,” as recited
in claim 7. Final Act. 5 (citing Cox ¶ 31).
Appellants argue “Cox’s disclosure of powered on information does
not teach or suggest the current recitation of ‘data indicative of whether the
target audience is currently using a specific playback device,’ as recited by
claim[] 7.” Appeal Br. 13.
We are unpersuaded because Appellants’ argument is not responsive
to the specific findings made by the Examiner. That is, the Examiner finds,
and we agree, that Cox discloses “[t]he noted utility may also be operative to
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determine whether the user equipment device is ‘on’ and to determine
whether any user is present at the user equipment device.’” Ans. 9 (citing
Cox ¶ 31). Appellants have not disputed the Examiner’s articulated
reasoning and findings in the Reply Brief and so have not shown error in the
Examiner’s conclusion of obviousness. We, therefore, sustain the 35 U.S.C.
§ 103 rejection of claim 7. We also sustain the Examiner’s rejection of
claim 15, which recite similar limitations and is argued together with claim
7. See Appeal Br. 12–13.

Rejection of Claims 5, 6, 10, 14, and 19 Under § 103
Appellants urge reversal of the rejection of claims 5, 6, 10, 14, and 17
for the reasons discussed with respect to claim 1, because “Hardy, cited in
the rejection of claims 5, 6, 10, 14, and 17, does not obviate the deficiencies
of Cox.” Appeal Br. 13. As discussed above, however, we are not
persuaded that Cox is deficient. Because we find Appellants’ arguments
regarding claim 1 unpersuasive for the reasons discussed supra, we sustain
the Examiner’s rejection of claims 5, 6, 10, 14, and 17.

REPLY BRIEF
To the extent Appellants may advance new arguments in the Reply
Brief not in response to a shift in the Examiner’s position in the Answer, we
note arguments raised in a Reply Brief that were not raised in the Appeal
Brief or are not responsive to arguments raised in the Examiner’s Answer
will not be considered except for good cause, which Appellants have not
shown. See 37 C.F.R. § 41.41(b)(2).

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DECISION
We affirm the Examiner’s decision rejecting claims 1–20 under
35 U.S.C. § 103.
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