Ex Parte McClementsDownload PDFPatent Trial and Appeal BoardDec 12, 201613323615 (P.T.A.B. Dec. 12, 2016) Copy Citation 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. 13/323,615 12/12/2011 James Burns McClements IV P003.03 (77828.0011) 7137 26582 7590 12/14/2016 HOLLAND & HART, LLP 222 South Main Street, Suite 2200 P.O. Box 11583 SALT LAKE CITY, UT 84147 EXAMINER NGUYEN, NHAT HUY T ART UNIT PAPER NUMBER 2172 NOTIFICATION DATE DELIVERY MODE 12/14/2016 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): patentdocket @ hollandhart. com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte JAMES BURNS McCLEMENTS IV Appeal 2016-000638 Application 13/323,615 Technology Center 2100 Before DEBRA K. STEPHENS, ADAM J. PYONIN, and JOHN R. KENNY, Administrative Patent Judges. KENNY, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE This is an appeal under 35 U.S.C. § 134 from rejections of claims 1— 20. Non-Final Act. 1; App. Br. 11. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM-IN-PART. Appeal 2016-000638 Application 13/323,615 CLAIMED INVENTION The claimed invention relates to the creation, storage, and distribution of commentary on media content. Spec. 13. Claims 1 and 9, reproduced below, are illustrative of the claimed subject matter: 1. A method of associating comments with playback of media content, the method comprising: recording, by a first device from a second device, an audio or visual sample of media content being played on the second device; providing at the first device a parallel echo version of media content being played on the second device, the parallel echo version based on the sample from the second device; receiving a selection of a portion of the parallel echo version of the media content at the first device; receiving a comment associated with the selected portion of the parallel echo version of the media content at the first device; and associating the received comment with a portion of the media content associated with the selected portion of the parallel echo version of the media content. 9. An apparatus for associating comments with playback of media content, the apparatus comprising: at least one processor; a memory communicatively coupled with the at least one processor, the memory comprising computer-readable program code stored thereon; wherein the at least one 2 Appeal 2016-000638 Application 13/323,615 processor, upon executing the computer-readable program code, is configured to implement: a sampling module configured to record, from a second device, an audio or visual sample of media content being played on the second device; an echo version module configured to provide a parallel echo version of media content being played on the second device separate from the apparatus, the parallel echo version based on the sample from the second device; a selection receiving module configured to receive a selection of a portion of the parallel echo version of the media content; a comment receiving module configured to receive a comment associated with the selected portion of the parallel echo version of the media content; and an association module configured to associate the received comment with a portion of the media content associated with the selected portion of the parallel echo version of the media content. REJECTIONS Claims 1—6, 8—18, and 20 stand rejected under 35 U.S.C. § 102(b) as anticipated by Gupta. Non-Final Act. 3—21. REFERENCES Weast Gupta US 6,931,151 B2 US 7,162,690 B2 Aug. 16, 2005 Jan. 9, 2007 3 Appeal 2016-000638 Application 13/323,615 Claims 7 and 19 stand rejected under 35 U.S.C. § 103(a) as unpatentable over the combination of Gupta and Weast. Non-Final Act. 22— 24. ANALYSIS Claim 1 The dispositive issue for independent claim 1 is whether the recited “a first device” and “the first device” must be the same device. In mapping the elements of claim 1 to Gupta, the Examiner maps “a first device” to annotation server 10 and “the first device” to client computer 15(1). Non- Final Act. 3^4; Ans. 2-4; Gupta Fig. 1. Appellant argues that the Examiner erred in this mapping because “a first device” and “the first device” in claim 1 must refer to the same device. App. Br. 7; Reply Br. 3^4. The Examiner disagrees, noting that claim 1 recites “the first device,” not “said same first device.” Ans. 26. We agree with Appellant on this issue. In claim 1, “a first device” provides antecedent basis for “the first device.” Both terms refer to the same device. Proveris Scientific Corp. v. Innovasystems, Inc., 739 F. 3d 1367, 1373 (Fed. Cir. 2014) (“‘the image data’ clearly derives antecedent basis from the ‘image data’ defined in greater detail in the preamble . . . .”); Process Control Corp. v. Hydreclaim Corp., 190 F.3d 1350, 1356—1357 (Fed. Cir. 1999) (“a discharge rate” and “the discharge rate” are the same rate.) See also MPEP § 2173.05(e). Gupta’s Annotation server 10 and client computer 15(1), in contrast with the claim requirements, are devices separated by network 16. Gupta Fig. 1. Accordingly, we do not sustain the rejection of claim 1. 4 Appeal 2016-000638 Application 13/323,615 Claims 2—8 and 12—20 Independent claim 12 presents the same dispositive issue as claim 1. Claims 2—8 and 13—20 each depend on either claim 1 or claim 12. Accordingly, we do not sustain the rejections of claims 2—8 and 12—20.1 Claims 9—11 Appellant argues that the Examiner erred in rejecting independent claim 9 for the same reasons as claim 1; that is, because Gupta does not disclose the limitations of: (i) ‘“recording, by a first device from a second device, an audio or visual sample of media content being played on the second device’”; (ii) “‘providing at the first device a parallel echo version of media content being played on the second device, the parallel echo version based on the sample from the second device’”; (iii) “‘receiving a selection of a portion of the parallel echo version of the media content at the first device’”; and (iv) “‘receiving a comment associated with the selected portion of the parallel echo version of the media content at the first device.’” App. Br. 5—10 (emphasis omitted). None of these limitations are recited by claim 9, and Appellant has not provided any explanation of how the claim limitations relate to the arguments provided. Cf. In re Baxter Travenol Labs., 952 F.2d 388, 391 (Fed. Cir. 1991) (“It is not the function of this court to examine the claims in greater detail than argued by an appellant, looking for [patentable] distinctions over the prior art.”) 1 Appellant raises additional issues regarding the rejections claims 1—8 and 12—20. Those issues, however, are moot in light of our disposition of those rejections. 5 Appeal 2016-000638 Application 13/323,615 Because Appellant argues limitations that claim 9 does not recite, we are not persuaded that the Examiner erred in rejecting claim 9 or claims 10 and 11, not separately argued. App. Br. 9. Therefore, we sustain the rejection of claims 9—11. DECISION We reverse the rejections of claims 1—8 and 12—20. We affirm the rejection of claims 9—11. 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-IN-PART 6 Copy with citationCopy as parenthetical citation