Ex Parte McGee et alDownload PDFBoard of Patent Appeals and InterferencesJan 23, 200909876198 (B.P.A.I. Jan. 23, 2009) Copy Citation UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE BOARD OF PATENT APPEALS AND INTERFERENCES ____________ Ex parte TOM MCGEE, NEVENKA DIMITROVA, and LALITHA AGNIHOTRI _____________ Appeal 2008-4969 Application 09/876,198 Technology Center 2400 ____________ Decided: January 23, 2009 ____________ Before KENNETH W. HAIRSTON, JOSEPH F. RUGGIERO and, ELENI MANTIS MERCADER, Administrative Patent Judges. MANTIS MERCADER, Administrative Patent Judge. DECISION ON APPEAL Appeal 2008-4969 Application 09/876,198 2 STATEMENT OF THE CASE Appellants seek our review under 35 U.S.C. § 134 of the Examiner’s final rejection of claims 1-25. We have jurisdiction under 35 U.S.C. § 6(b). We reverse. INVENTION Appellants’ claimed invention is directed to obtaining from a catalog of electronic programming information including values representing characteristics data at the start and end times of a selected program, storing those values, and monitoring incoming video to record the selected program when the characteristics data of the incoming video match the stored values (Spec. 2:8-23 and Fig. 1). Claim 1, reproduced below, is representative of the subject matter on appeal: 1. A method of processing a catalog of electronic programming information containing information for at least one program, said information including a start time and an end time of said at least one program, said method comprising: obtaining from said at least one program a first value representing characteristics data of said at least one program at said start time; and storing said first value in said catalog; and obtaining from said at least one program a second value representing characteristics data of said at least one program at said end time; and storing said second value in said catalog; when a user selects said at least one program for a future use by a device with a program input, copying said first value and said second value to said device; Appeal 2008-4969 Application 09/876,198 3 comparing said first value and said second value to corresponding values obtained from said program input to determine a start and stop time for said future use. THE REJECTIONS The Examiner relies upon the following as evidence of unpatentability: Dimitrova US 6,100,941 Aug. 08, 2000 Alexander US 6,177,931 B1 Jan. 23, 2001 (filed Jul. 21, 1998) The following rejections are before us for review: 1. The Examiner rejected claims 1-4, 8, 10-14, 18, 20, and 22-25 under 35 U.S.C. § 102(e) as being anticipated by Alexander. 2. The Examiner rejected claims 5-7, 9, 15-17, 19 and 211 under 35 U.S.C. § 103(a) as being unpatentable over Alexander in view of Dimitrova. ANTICIPATION ISSUE Claims 1-4, 8, 10-14, 18, 20, and 22-25 Appellants contend inter alia that Alexander “is silent regarding obtaining such data from a television program itself, let alone obtaining values representing 1 The Final Rejection lists claim 21 as being unpatentable under 35 U.S.C. § 103(a) (Final Rej. 9) and Appellants address claim 21 in the Brief (Br. 4-8). Thus, we consider the exclusion of this claim under the grounds of rejection (Ans. 3) as inadvertent error. Appeal 2008-4969 Application 09/876,198 4 characteristic data of at least one program at start and end times from the program” as recited in claim 1 (Br. 6). The Examiner responded that Alexander teaches a Television Receiver (TVR) 10 or 24, which obtains from at least one program packets of EPG data representing characteristics data of at least one program (i.e., date, start time/end time, duration, etc.), which Examiner construed as the claimed first value, and monitoring received EPG data for scheduling updates, which Examiner construed as the claimed second value (Ans. 3 and Final Rej. 6). The Examiner further stated that Alexander teaches that the TVR-10 or EPG microprocessor monitors in real- time or on an ongoing basis the packets of EPG data received for changes in the schedule information (date, start time/end time, duration, etc.) and upon receiving a packet of scheduling updates the microprocessor compares these values to determine the appropriate recording duration (or start time/end time) for recording the program and automatically updates the recording list to meet these changes (Ans. 3-4). Furthermore, the Examiner states that “the data packets transmitted in the VBI, including data packets representing changes as to the program schedule are parts of the TV program” (Ans. 4). The issue before us, then, is as follows: Have the Appellants shown that the Examiner erred by determining that Alexander teaches “a first value representing characteristics data . . . at said start time . . . and . . . a second value representing characteristics data at said end time” as recited in independent claim 1? Appeal 2008-4969 Application 09/876,198 5 FINDINGS OF FACT The relevant facts include the following: 1. Alexander teaches that scheduling update packet information is transmitted to the viewer’s television over the vertical blanking interval (VBI), and the Electronic Programming Guide (EPG) detects the VBI scheduling updates and accordingly updates the recording list of the programs of interest (col. 11, l. 64-col. 12, l. 9 and col. 8, ll. 50-52). 2. Alexander teaches that EPG detects changes in program scheduling for a particular title designated for recording and updates the recording list following a program that may run longer (i.e., sports event) (col. 11, l. 64- col. 12, l. 9). 3. Alexander teaches that the transmitted video information will include values such as changes in audio content (i.e., including changes in announcers, changes in speed, and topical words) (col. 12, ll. 30-43). 4. Alexander teaches that the audio content is used to index already recorded information (col. 12, ll. 10-43). PRINCIPLES OF LAW “A claim is anticipated only if each and every element as set forth in the claim is found, either expressly or inherently described, in a single prior art reference.” Verdegaal Bros. Inc., v. Union Oil Co. of Calif., 814 F.2d 628, 631 (Fed. Cir. 1987). Appeal 2008-4969 Application 09/876,198 6 ANALYSIS Have Appellants shown that the Examiner erred by determining that Alexander teaches “a first value representing characteristics data . . . at said start time . . . and . . . a second value representing characteristics data at said end time” as recited in independent claim 1? Alexander teaches that scheduling update packet information is transmitted to the viewer’s television over the vertical blanking interval (VBI), and the Electronic Programming Guide (EPG) detects the VBI scheduling updates (i.e., television program updates) and accordingly updates the recording list of the programs of interest (Finding of Fact 1). Alexander teaches that EPG detects changes in program scheduling for a particular title designated for recording and updates the recording list following a program that may run longer (i.e., sports event) (Finding of Fact 2). Thus, the updated program schedule is based solely on the title of the program (emphasis added). The Examiner’s construction of the updated program schedule as “a second value” is misplaced. Even if we assume that the start/end time or duration of the program associated with the title of the program constitute “a second value,” the claim does not merely recite “a second value,” but rather, “a second value representing characteristics data of said at least one program at said end time” of that program (emphasis added). The Examiner did not articulate what feature in Alexander constitutes “a second value representing characteristics data of said at least one program at said end time” (emphasis added). Furthermore, we note that Alexander teaches in a separate embodiment that the transmitted video information will include values (i.e., “signature” information) such as changes in audio content (i.e., including changes in announcers, changes in Appeal 2008-4969 Application 09/876,198 7 speed, and topical words) (Finding of Fact 3). However, these values are not compared to determine “a start and stop time” for a future recording as claimed in independent claim 1, but rather, to index already recorded information (Finding of Fact 4). Thus, Alexander is further silent as to “comparing said first value and said second value to corresponding values obtained from said program input to determine a start and stop time for said future use” as claimed in independent claim 1. For the above reasons, Appellants have shown error in the Examiner’s rejection of independent claim 1 under 35 U.S.C. § 102(e) as well as independent claims 11 and 22 which recite commensurate limitations. For similar reasons, we are likewise persuaded of error in the Examiner’s rejection of dependent claims 2- 4, 8, 10, 12-14, 18, 20, and 23-25. CONCLUSION Appellants have shown that the Examiner erred by determining that Alexander teaches “a first value representing characteristics data . . . at said start time . . . and . . . a second value representing characteristics data at said end time” as recited in independent claim 1. For similar reasons, we are likewise persuaded of error in the Examiner’s rejection of independent claims 11 and 22, as well as dependent claims 2-4, 8, 10, 12-14, 18, 20, and 23-25. Appeal 2008-4969 Application 09/876,198 8 OBVIOUSNESS ISSUE Claims 5-7, 9, 15-17, 19, and 21 The issue is whether Dimitrova cures Alexander’s deficiencies as stated supra under the Anticipation Analysis. More specifically, the issue is whether the Examiner erred by determining that the Alexander and Dimitrova combination teaches “recording an incoming signal when the signature of the incoming signal matches the signature of the start time within the obtained signature; and terminating recording of the incoming signal when the signature of the incoming signal matches the signature of the end time within the obtained signature” as claimed. FINDINGS OF FACT The relevant facts include the following: 5. Dimitrova teaches comparing values (i.e., the start time signature and the end time signature) of an incoming signal (col. 5, ll. 12-15) with start and end-time signatures obtained for a selected program (i.e., a commercial; and col. 17, l. 50-col. 18, l. 18) to determine “a start and stop time” of that commercial (col. 2, ll. 10-63). 6. Dimitrova teaches that “[i]f no buffering is performed, the initial portions of a commercial will be recorded and the initial portions of a program following a commercial will not be recorded” because processing is required to determine a change between a program and a commercial (col. 19, l. 67- col. 20, l. 5). Appeal 2008-4969 Application 09/876,198 9 7. Dimitrova’s invention is directed to detecting commercials in an incoming signal and performing post-processing of the recording to either skip them or substitute them with alternate content (last sentence of Abstract and col. 19, ll. 49-60). PRINCIPLES OF LAW The Examiner’s articulated reasoning in the rejection must possess a rational underpinning to support the legal conclusion of obviousness. In re Kahn, 441 F.3d 977, 988 (Fed. Cir. 2006). The Supreme Court, citing In re Kahn, 441 F.3d at 988, stated that “rejections on obviousness grounds cannot be sustained by mere conclusory statements; instead, there must be some articulated reasoning with some rational underpinning to support the legal conclusion of obviousness.” KSR Int'l Co. v. Teleflex Inc., 127 S.Ct. 1727, 1741 (2007). ANALYSIS Did the Examiner err by determining that the Alexander and Dimitrova combination teaches “recording an incoming signal when the signature of the incoming signal matches the signature of the start time within the obtained signature; and terminating recording of the incoming signal when the signature of the incoming signal matches the signature of the end time within the obtained signature” as claimed? Dimitrova teaches comparison of values (i.e., the start time signature and the end time signature) of an incoming signal with start and end-time signatures obtained for a selected program (i.e., a commercial) to determine “a start and stop time” of that commercial (Finding of Fact 5). However, Dimitrova does not teach Appeal 2008-4969 Application 09/876,198 10 recording an incoming signal (i.e., unbuffered signal) when the signature of the incoming signal matches the signature of the start time within the obtained signature and terminating recording of the incoming signal when the signature of the incoming signal matches the signature of the end time within the obtained signature as claimed by independent claim 21. On the contrary, Dimitrova teaches that “[i]f no buffering is performed, the initial portions of a commercial will be recorded and the initial portions of a program following a commercial will not be recorded” because processing is required to determine a change between a program and a commercial (Finding of Fact 6). In other words, Dimitrova’s invention is directed to detecting commercials in an incoming signal and performing post-processing of the recording to either skip them or substitute them with alternate content (Finding of Fact 7)--not recording them at their start and end signatures. If no buffering is performed of an incoming signal, only an initial portion of a commercial is recorded (i.e., not the entire commercial) and the initial portion of a program following the commercial is not recorded. Thus, Dimitrova does not cure Alexander’s deficiency, in that while Dimitrova teaches monitoring and detecting start and end times of programs of interest of an “incoming signal,” Dimitrova does not teach “recording an incoming signal when the signature of the incoming signal matches the signature of the start time within the obtained signature; and terminating recording of the incoming signal when the signature of the incoming signal matches the signature of the end time within the obtained signature” as claimed in claim 21. Appeal 2008-4969 Application 09/876,198 11 For the above reasons, Appellants have shown error in the Examiner’s rejection of independent claim 21 under 35 U.S.C. § 103(a). For similar reasons, we are likewise persuaded of error in the Examiner’s rejection of dependent claims 5-7, 9, 15-17, and 19. CONCLUSION The Examiner erred by determining that the Alexander and Dimitrova combination teaches “recording an incoming signal when the signature of the incoming signal matches the signature of the start time within the obtained signature; and terminating recording of the incoming signal when the signature of the incoming signal matches the signature of the end time within the obtained signature” as claimed. Appeal 2008-4969 Application 09/876,198 12 ORDER The decision of the Examiner to reject claims 1-4, 8, 10-14, 18, 20, and 22- 25 under 35 U.S.C. § 102(e) and claims 5-7, 9, 15-17, 19, and 21 under 35 U.S.C. § 103(a) is reversed. REVERSED ELD PHILIPS INTELLECTUAL PROPERTY & STANDARDS P.O. BOX 3001 BRIARCLIFF MANOR, NY 10510 Copy with citationCopy as parenthetical citation