Ex Parte Lejeune

Patent Trial and Appeal Board

Feb 28, 2017

14181934 (P.T.A.B. Feb. 28, 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.
14/181,934 02/17/2014 Stephane Lejeune 200802319.04 1151
36738 7590 03/02/2017
ROrTTT7 fr ASSOPTATRS
EXAMINER
750 B STREET CHEN, CAI Y
SUITE 3120
SAN DIEGO, CA 92101 ART UNIT PAPER NUMBER
2425
NOTIFICATION DATE DELIVERY MODE
03/02/2017 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
following e-mail address(es):
Noelle@rogitz.com
eofficeaction @ appcoll.com
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PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte STEPHANE LEJEUNE
Appeal 2016-006382
Application 14/181,934
Technology Center 2400
Before JOSEPH L. DIXON, JAMES R. HUGHES, and ERIC S. FRAHM,
Administrative Patent Judges.
HUGHES, Administrative Patent Judge.
DECISION ON APPEAL
Appeal 2016-006382
Application 14/181,934
STATEMENT OF THE CASE
Appellant appeals under 35 U.S.C. § 134 from a rejection of claims
52—54. We have jurisdiction under 35 U.S.C. § 6(b).
We reverse.
The invention relates to “home networks having multiple display
devices requiring multiple instantiations of presentation software” (Spec.
1:8—9). Claim 52, reproduced below, is illustrative of the claimed subject
matter:
52. Apparatus comprising:
at least one computer memory that is not a transitory signal
and that comprises instructions executable by at least one
processor to:
access a video service composed of a model module
and a view/controller module, at least the view/controller
module being a software application, neither the model
module nor the view/controller module being a TV
program;
establish that the model module may not be
replicated; and
establish that the view/controller module may be
replicated or exported multiple times.
REFERENCE
The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
Casement US 5,969,748 Oct. 19, 1999
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Appeal 2016-006382
Application 14/181,934
REJECTION1
The Examiner made the following rejection:
Claims 52—54 stand rejected under 35 U.S.C. § 102(b) as being
anticipated by Casement.
ANALYSIS
The Examiner finds Casement discloses all the limitations of claim
52, including “establish that the model module may not be replicated; and
establish that the view/controller module may be replicated or exported
multiple times” (Final Act. 3—4). Specifically, the Examiner finds, with
respect to Figure 4 of Casement:
1 Appellant argues that any outstanding double patenting rejection should be
reversed because Appellant filed a terminal disclaimer, and the Office
improperly disapproved the terminal disclaimer (see App. Br. 4—5). The
Examiner’s Answer states “Every ground of rejection set forth in the Office
action dated 11/30/2015 from which the appeal is taken is being maintained
by the examiner” (Ans. 2). The Advisory Action dated November 30, 2015
does not discuss a double patenting rejection. However, the Examiner does
assert, in the Final Action dated November 16, 2015 from which Appellant
appeals, that “[i]n response to a terminal disclaimer that is filed on
09/18/2015, this terminal disclaimer is disqualified by the office on
10/22/2015; applicant requires to file a new terminal disclaimer in order to
overcome the potential double patenting rejection” (Final Act. 2). To the
extent that there is an outstanding double patenting rejection, we do not
consider the rejection to be on appeal before the Board, given the fact that
Appellant filed a terminal disclaimer. Further, the issue of whether the
terminal disclaimer is proper is not a matter for the Board to decide. See
MPEP § 1201 (“The line of demarcation between appealable matters for the
Board and petitionable matters for the Director of the U.S. Patent and
Trademark Office (Director) should be carefully observed.”). See also 35
U.S.C. § 134(a) (limiting appeal before the Board to rejected claims of a
patent application).
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Appeal 2016-006382
Application 14/181,934
[I]f the condition [“NO” in el. 150] of a TV program does not
require a parental password; then the software steps from el. 150
to el. 168 is to be proceed or replicated directly such that the TV
program is to be playback to be seen by a viewer . . . hence the
software steps from el. 150 to el. 168 [with “NO” condition] is
mapped to claim limitation “a view/controller module” because
the functionality of the software module may be replicated as
recited in the claim is achieved, furthermore, if the condition
[“YES” in el. 150] does require a password, then the software
steps in el. 152 and el. 154 [with “YES” condition] would be
proceed; at the step in el. 172, if the viewer cannot provide with
the correct password, then the software step cannot proceed or
replicated to el. 172 such that the TV program would not able to
be playback. Further, the software steps from el. 150 [with
“YES” condition] to el. 152 and el. 154 [with “YES” condition]
and finally stop at el. 172 [with no password or incorrect
password being inputted] are mapped to the claim limitation “the
model module” because the functionality of the software module
[model module] may not be replicated as recited in the claim is
achieved.
(Ans. 5—6). Appellant contends:
The explanation of using the same logic steps in Figure 4 for both
claimed modules on its face does not seem logical, because the
same elements are used for two separate claim elements. It
would seem that if logical steps in Figure 4 can be considered to
be replicable for purposes of reaching the view controller
module, those same logic steps cannot consistently be said to be
non-replicable for purposes of reaching the model module. . . .
The rejection further merits reversal because nothing in
Casement says anything at all about what is claimed (a replicable
module and a non-replicable module).
(Reply Br. 2). We agree with Appellant.
Claim 52 of the present invention recites two separate modules of a
video service, a “model module” and a “view/controller module.” Further,
the claimed apparatus establishes “the model module may not be replicated”
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Appeal 2016-006382
Application 14/181,934
and “the view/controller module may be replicated or exported multiple
times.” (Claim 52; App. Br. 6). Accordingly, it is the video service modules
that may or may not be replicated in claim 52.
In contrast, Casement’s Figure 4 is a flowchart illustrating an
algorithm for deciding whether a TV program is shown depending on
whether a parental password is input (see Casement, col. 6,11. 48—52). Even
if we were to consider a decision to not show a TV program to mean the TV
program is not “replicated,” and a decision to show a TV program to mean
the TV program is “replicated,” this would not meet the claim 52 limitations
“establish that the model module may not be replicated; and establish that
the view/controller module may be replicated or exported multiple times,”
because a TV program is different than a video service module, and claim 52
specifically recites “neither the model module nor the view/controller
module being a TV program.”
Further, even if we interpret the Examiner’s rejection a different way
and consider stepping through Casement’s algorithm in Figure 4 to mean the
steps of the algorithm are “replicated,” we could not also consider stepping
through the algorithm a different time to mean the steps are not “replicated.”
That is, the same algorithm cannot simultaneously meet the different
limitations of a replicable module and a non-replicable module. Casement’s
Figure 4 shows only a single flowchart for a parental control feature (see
Casement, col. 6,11. 48—52), and the Examiner has not shown the parental
control feature requires multiple modules, one that may be replicated and
one that may not be replicated.
We are, therefore, constrained by the record to find the Examiner
erred in rejecting claim 52, and claims 53 and 54 for similar reasons.
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Appeal 2016-006382
Application 14/181,934
CONCLUSION
The Examiner erred in rejecting claims 52—54 under 35 U.S.C.
§ 102(b).
DECISION
For the above reasons, the Examiner’s rejection of claims 52—54 is
reversed.
REVERSED
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