Ex Parte Kline et al

Patent Trial and Appeal Board

Jan 19, 2017

10956557 (P.T.A.B. Jan. 19, 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.
10/956,557 10/01/2004 Michael L. Kline REACP003 / RCL0041US 8701
23413 7590 01/23/2017
TANTOR TOT RTTRN T T P
EXAMINER
20 Church Street RETTA, YEHDEGA
22nd Floor
Hartford, CT 06103 ART UNIT PAPER NUMBER
3622
NOTIFICATION DATE DELIVERY MODE
01/23/2017 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
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PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte MICHAEL L. KLINE,
ROBERT KENDRICK SPITZ,
LEON FREDERICK SIMMONDS JR.,
JONATHAN DANIEL MYRON,
and THOMAS RICHARD HUBBARD
Appeal 2014—005991
Application 10/956,557
Technology Center 3600
Before MURRIEL E. CRAWFORD, ANTON W. FETTING, and
KENNETH G. SCHOPFER, Administrative Patent Judges.
FETTING, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE1
Michael L. Kline, Robert Kendrick Spitz, Leon Frederick Simmonds Jr.,
Jonathan Daniel Myron, and Thomas Richard Hubbard (Appellants) seek
review under 35 U.S.C. § 134 of a final rejection of claims 1—54, the only
1 Our decision will make reference to the Appellants’ Appeal Brief (“App.
Br.,” filed January 22, 2014) and Reply Brief (“Reply Br.,” filed June 4,
2014), and the Examiner’s Answer (“Ans.,” mailed April 4, 2014), and Final
Action (“Final Act.,” mailed April 22, 2013).
Appeal 2014-005991
Application 10/956,557
claims pending in the application on appeal. We have jurisdiction over the
appeal pursuant to 35 U.S.C. § 6(b).
The Appellants invented a way of implementing and managing
marketing campaigns among a plurality of publishers. Specification 1:20—
22.
An understanding of the invention can be derived from a reading of
exemplary claim 1, which is reproduced below (bracketed matter and some
paragraphing added).
1. A method
for generating advertisement information
for performing a marketing campaign on behalf of an
advertiser
having an associated computer in communication
with a data network
using a plurality of electronic publishers in
communication with the data network,
the method comprising:
[1] receiving at an advertising platform,
which platform is configured to manage
advertising for the yield benefit of an advertiser
across multiple publishers,
over the data network,
information describing subject matter of the marketing
campaign;
[2] generating advertisement information
based on the received information describing the
marketing campaign subject matter managed by the
advertising platform;
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Application 10/956,557
[3] automatically,
though [sic, through] a publisher interface engine
of the advertising platform,
without an advertiser having to learn the
complexities of a plurality of publishers'
advertising techniques or keyword bidding
systems,
or
without an advertiser having to establish individual
advertising accounts with a plurality of publishers,
generating
via the advertising platform
a plurality of instantiations of the advertisement
information,
using publisher parameters associated with the
electronic publishers,
wherein at least two publisher parameters are
distinct and specific to the publishers,
each instantiation in a format appropriate for a
respective one of the electronic publishers;
[4] providing plural, different generated instantiations
via a publisher interface engine
to plural respective electronic publisher [sic, publishers]
over the data network,
including at least two of search publishers, display
publishers and directory publishers;
and
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Appeal 2014-005991
Application 10/956,557
[5] at a reporting and optimization engine,
using data received from two or more of
publishers, proxy activity, consumer history, link
tracking and phone call tracking
to produce regular optimal refinement of selection
of publishers, bids, keyword selection and prices
and budget or other marketing activity
for the yield benefit of the advertiser
across the multiple publishers and publisher types
to optimize leads.
The Examiner relies upon the following prior art:
Tsutani US 2003/0110080 A1 Jun. 12, 2003
Dresden US 2005/0021440 A1 Jan. 27, 2005
Claims 1—13, 16-41, 53, and 54 stand rejected under 35 U.S.C. § 102(b)
as anticipated by Tsutani.
Claims 14, 15 and 42—52 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Tsutani and Dresden.
ISSUES
The issues of anticipation and obviousness turn primarily on whether
Tsutani describes using plural parameters specific to individual publishers to
generate plural advertising instantiations.
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Appeal 2014-005991
Application 10/956,557
FACTS PERTINENT TO THE ISSUES
The following enumerated Findings of Fact (FF) are believed to be
supported by a preponderance of the evidence.
Facts Related to the Prior Art
Tsutani
01. Tsutani is directed to optimizing an advertisement to be
distributed to a site on the internet, and more specifically,
optimizing a media plan describing a plan for publishing and
distributing an advertisement to respective media. Tsutani para. 1.
02. Tsutani describes a media plan creating server that generates an
optimized media plan indicative of a site to which an
advertisement is to be distributed, a period for the distribution and
the prediction of an effect thereof based on the manuscript created
by the advertising agency, and returns the optimized media plan to
the REP server. The REP server gives each site an instruction for
distributing an advertising banner according to the created
manuscript for a predetermined site for a predetermined period
based on data sent from the media plan creating server. In the
predetermined site, the advertising banner is displayed for a
predetermined period. Tsutani para. 50.
03. Tsutani describes the user class being classified to some extent
according to the contents to be returned to the user. This
classification includes “a site for office ladies”, “a site for men in
twenties”, “a site for young housewives”, “a site for girl high
school students”, “a business site” and the like. The classification
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Application 10/956,557
is neither clarified nor defined and the site is simply characterized
to some extent by the user class. Tsutani para. 51. A user class is
specific to a marketing campaign. Tsutani para. 49.
04. Tsutani describes a media plan creating server that generates an
optimized media plan indicative of media to which an
advertisement is to be distributed, a period for the distribution and
the prediction of an effect thereof based on the manuscript created
by the advertising agency, and returns the optimized media plan to
the advertising agency. The advertising agency publishes or
distributes an advertisement to predetermined media for a
predetermined period according to the optimized media plan thus
transmitted. Tsutani para. 77.
05. Tsutani describes a user’s response for the publication or
distribution of the advertisement being transmitted to the media
plan creating system through the advertiser system and the media
plan creating system creates an effect measurement report based
on the response. A document including the effect measurement
report is an analyst report. Tsutani para. 83.
06. Tsutani describes the reflection sent from the user viewing the
advertisement being divided into three types, that is, a response, a
material request and a contract. The response implies that the user
viewing the advertisement has any response. The material request
implies that a material for a product related to the advertisement or
the like is requested for the advertisement. Moreover, the contract
implies that the user finally purchases the product related to the
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advertisement. Each cost performance for the cost of an
advertisement is stored in the database together with the total
number of responses, material requests and contracts for each
advertisement. Tsutani para. 91.
ANALYSIS
We are persuaded by Appellants' argument that Tsutani fails to describe
generating via the advertising platform a plurality of instantiations of the
advertisement information, using publisher parameters associated with the
electronic publishers, wherein at least two publisher parameters are distinct
and specific to the publishers. App. Br. 9—10. The Examiner finds that
Tsutani describes this at paragraphs 50-51. Ans. 2. These paragraphs
describe creating a media plan that is then used to send each site an
instruction for an advertising banner to be displayed for a predetermined
period, and describing a user class for an entire advertising campaign in
qualitative demographic terms. None of these parameters are specific to the
publishers. A time period and demographic target for a campaign are
specific to the campaign instead. The Examiner does not respond to this
particular portion of the limitation at issue in the Response. Ans. 6—7.
CONCLUSIONS OF LAW
The rejection of claims 1—13, 16-41, 53, and 54 under 35 U.S.C. §
102(b) as anticipated by Tsutani is improper.
The rejection of claims 14, 15 and 42—52 under 35 U.S.C. § 103(a) as
unpatentable over Tsutani and Dresden is improper.
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DECISION
The rejection of claims 1—54 is reversed.
REVERSED
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