12840864 (P.T.A.B. Sep. 22, 2016)

Ex Parte Kandekar et al

Patent Trial and Appeal BoardSep 22, 2016

12840864 (P.T.A.B. Sep. 22, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE FIRST NAMED INVENTOR 12/840,864 07/21/2010 Kuna! Kandekar 71739 7590 09/26/2016 Concert Technology Corporation 20 Depot Street Suite 2A Peterborough, NH 03458 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. CT-MED-059/US (P352) 1903 EXAMINER REYES, MARIELA D ART UNIT PAPER NUMBER 2159 NOTIFICATION DATE DELIVERY MODE 09/26/2016 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): uspto.correspondence@sceneralabs.com uspto _alert@concerttechnology.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte KUNAL KANDEKAR, MICHAEL W. HELPINGSTINE, and RA VI REDDY KATPELL Y 1 Appeal2014-009330 Application 12/840,864 Technology Center 2100 Before DEBRA K. STEPHENS, JASON V. MORGAN, and MICHAEL J. ENGLE, Administrative Patent Judges. MORGAN, Administrative Patent Judge. DECISION ON APPEAL Introduction This is an appeal under 35 U.S.C. Â§ 134(a) from the Examiner's Final Rejection of claims 1-34. App. Br. 9. We have jurisdiction under 35 U.S.C. Â§ 6(b ). We AFFIRM. 1 Appellants identify PORTO TECHNOLOGY, LLC, as the real party in interest. App. Br. 3. Appeal2014-009330 Application 12/840,864 Invention Appellants disclose "[ s ]ystems and methods are provided for linking and playing media content from one or more media items." Abstract. Exemplary Claim Claim l, reproduced below with key limitations emphasized~ is representative: 1. A method of operating a computational device for linking media content, comprising: receiving a first user input defining a media fragment within a first media item; receiving a second user input defining a first media segment that is discrete from the media fragment within the first media item; creating a linking item linking the first media segment to the first media item over the period defined by the media fragment wherein the linking item is associated with the first media item and is actionable only over the period defined by the media fragment; and storing the linking item. Rejections The Examiner rejects claims 1-27, 33, and 34 under 35 U.S.C. Â§ 103(a) as being unpatentable over Malik (US 2008/0065693 Al; published Mar. 13, 2008) and Lasorsa et al. (US 7,450,826 B2; issued Nov. 11, 2008). Final Act. 2-13 The Examiner rejects claims 28-32 under 35 U.S.C. Â§ 103(a) as being unpatentable over Malik, Lasorsa, and Bates et al. (US 6,774,908 B2; issued Aug. 10, 2004). Final Act. 13-16. 2 Appeal2014-009330 Application 12/840,864 ISSUES 1. Did the Examiner err in finding the combination of Malik and Lasorsa teaches or suggests "creating a linking item linking the first media segment to the first media item over the period defined by the media fragment wherein the linking item is associated with the first media item and is actionable only over the period defined by the media fragment," as recited in claim 1? 2. Did the Examiner improperly combined the teachings and suggestions of Malik and Lasorsa? ANALYSIS We agree with and adopt as our own the Examiner's findings of facts and conclusions as set forth in the Answer and in the Action from which this appeal was taken. We have considered Appellants' arguments, but do not find them persuasive of error. We provide the following explanation for emphasis. In rejecting claim 1, the Examiner finds Malik' s linking of tagged media program segments in a sequential order to create a single customized tagged media program file teaches or suggests creating a linking item linking the first media segment to the first media item, wherein the linking item is associated with the first media item. Final Act. 3 (citing Malik i-f 28). The Examiner relies on Lasorsa's selectable sub-segments, which are accessed using selectable links that appear at predetermined times and for predetermined periods during play of a primary media program, to teach or suggest the linking item being over the period defined by the media fragment and the linking item being actionable only over the period defined by the media fragment. Final Act. 3 (citing Lasorsa col 2, 11. 1-3). 3 Appeal2014-009330 Application 12/840,864 Appellants contend the Examiner erred because Malik's "linking between media program segments is such that an endpoint of one Malik media program segment is linked to a starting point of the next Malik media program segment." App. Br. 14--15. That is, Appellants argue Malik's media player application is limited to sequentially playing portions of media programs corresponding to the media segments identified. Id. at 15. Thus, Appellants contend "Malik teaches away from a linking item that is associated with the first media item and that is actionable only over the period defined by the media fragment" and "combining Malik with Lasorsa would require Malik to be changed such that any of the links within the customized tagged media program file can be played out of sequence." Id. at 16. Appellants' arguments are not commensurate with the scope of the claimed invention, and thus, are unpersuasive. In particular, the claim limitation of the linking item being actionable only over the period defined by the media fragment (e.g., selectable in the manner taught or suggested by Lasorsa's sub-segments) does not preclude the linking item from being invoked automatically at the end of the period (e.g., in the manner taught or suggested by Malik's sequentially ordered tagged media program segments). Appellants even admit that "[ s ]equentially playing media is clearly not the same as a media segment linked to a media item over the period defined by the media fragment." Id. at 15. We agree that these are not the same because automatic playing media does not require taking action during a period defined by a media fragment (i.e., does not require the media to be actionable). Thus, the use of Lasorsa' s selectable sub-segments to make actionable a media segment during a media fragment-and in particular 4 Appeal2014-009330 Application 12/840,864 before the end of the predecessor media fragment (e.g., something like a "skip to next" feature }-would not be precluded by the teachings and suggestions of Malik. As such, Malik' s teachings and suggestions related to sequential playing of media do not teach away from the use of Lasorsa' s selectable sub-segments. "A reference may be said to teach away when a person of ordinary skill, upon reading the reference, would be discouraged from following the path set out in the reference, or would be led in a direction divergent from the path that was taken by the applicant." In re Gurley, 27 F.3d 551,553 (Fed. Cir. 1994). Here, we are not persuaded an ordinarily skilled artsian would have understood Malik to teach away from Lasora. We further are unpersuaded the combination would change the principle of operation of Malik. App. Br. 16. The Examiner relies on Lasorsa for teaching the linking item is actionable only over the period defined by the media fragment. Final Act. 3. We are not persuaded combining the linking item being actionable as taught by Lasorsa, into the system of Malik, would change the principle of operation of Malik. Thus, we are not persuaded the Examiner improperly combined the teachings and suggestions of Malik and Lasorsa. We further agree with the Examiner that the combination of Malik and Lasorsa teaches or suggests "creating a linking item linking the first media segment to the first media item over the period defined by the media fragment wherein the linking item is associated with the first media item and is actionable only over the period defined by the media fragment," as recited in claim 1. 5 Appeal2014-009330 Application 12/840,864 Accordingly, we sustain the Examiner's 35 U.S.C. Â§ 103(a) rejection of claim 1, and claims 2---6, 8-27, 33, and 34, which Appellants do not argue separately. Appellants argue "Bates fails to cure the deficiencies of Malik and Lasorsa with respect to at least independent claims 1 and 24." App. Br. 18. However, because Malik and Lasorsa are not deficient, we do not find Appellants' argument persuasive of error. Therefore, we also sustain the Examiner's 35 U.S.C. Â§ 103(a) rejection of claims 28-30. Appellants' arguments with respect to claim 7 ultimately depend on the contention that Malik's sequential playing of segments "teaches away from causing the media player to play the first media segment when playback of the first media item has reached the media fragment." Id. at 17. However, Appellants do not provide persuasive arguments or evidence to support this conclusory allegation. Therefore, we also sustain the Examiner's 35 U.S.C. Â§ 103(a) rejection of claim 7. Similarly, Appellants' conclusory contention that Bates does "not disclose or suggest the features of claims 31 and 32" is not supported by persuasive arguments or evidence. Id. at 18-19. The Examiner has set forth with specificity how Bates teaches or suggests the disputed limitation and Appellants have not set forth sufficiently why the Examiner's findings are in error. Therefore, we also sustain the Examiner's 35 U.S.C. Â§ 103(a) rejection of claims 31 and 32. 6 Appeal2014-009330 Application 12/840,864 DECISION We affirm the Examiner's decision rejecting claims 1-34. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. Â§ 1.136(a). See 37 C.F.R. Â§ 41.50(Â±). AFFIRMED 7