Ex Parte Merrick et alDownload PDFPatent Trial and Appeal BoardMay 31, 201612062231 (P.T.A.B. May. 31, 2016) Copy Citation UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE FIRST NAMED INVENTOR 12/062,231 04/03/2008 Iain Merrick 26192 7590 06/02/2016 FISH & RICHARDSON P,C PO BOX 1022 MINNEAPOLIS, MN 55440-1022 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. 16113-0539001 9914 EXAMINER DANZIG,REVAR ART UNIT PAPER NUMBER 3687 NOTIFICATION DATE DELIVERY MODE 06/02/2016 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): P ATDOCTC@fr.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte IAIN MERRICK, JASON BA YER, JOHN ALASTAIR HAWKINS, GREG HECHT, MICHAEL A. KILLIANEY, SIMON ROWE, GEOFFREY R. SMITH, and DANIEL J. ZIGMOND Appeal2014-000726 Application 12/062,231 Technology Center 3600 Before MURRIEL E. CRAWFORD, HUBERT C. LORIN, and ROBERT M. SILVERMAN, Administrative Patent Judges. CRAWFORD, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Appellants seek our review under 35 U.S.C. § 134 of the Examiner's final decision rejecting claims 1-14, 16, 17, 19-32 and 34--42. We have jurisdiction over the appeal under 35 U.S.C. § 6(b ). We REVERSE. Claim 1 is illustrative: 1. A method, comprising: forecasting, by one or more computers, performance data associated with a media item based on historical data associated with one or Appeal2014-000726 Application 12/062,231 more related media items, the one or more related media items being related to the media item; associating, by one or more computers, an advertising item with the media item based on the forecast performance data, based on availability of an advertising slot associated with the media item, and based on an advertising budget associated with an advertiser for the advertising item; adjusting, by one or more computers, the advertising budget based on the forecast performance data by impounding a portion of the advertising budget for providing the advertising item in the advertising slot, the impounded portion being equal to an expected cost for distributing the advertising item in the advertising slot, the expected cost being determined based on the forecast performance data and a cost for providing advertising items in the advertising slot; and reconciling, by one or more computers, the advertising budget to account for a difference between the impounded portion and an actual cost for providing the advertising item-in the advertising slot, the actual cost being determined based on measured impressions for the advertising item in the advertising siot. Appellant(s) appeal the following rejection(s): 1. Claims 1-14, 16, 17, 19-23, and 34--42 under 35 U.S.C. § 103(a) as anticipated by Holtz (US 2003/0070167 Al, Apr. 10, 2003), Collin (US2007/0028263 Al, Feb. 1, 2007), Sato (US 2002/0128907 Al, Sept. 12, 2002), and Phelan (US 2004/0093296 Al, May 13, 2004). ISSUE Did the Examiner err in rejecting the claims because Phelan does not disclose reconciling an advertising budget to account for differences between an impounded portion and an actual cost? 2 Appeal2014-000726 Application 12/062,231 ANALYSIS The Appellants argue that the Phelan does not disclose reconciling an impounded portion with an actual cost in an advertising budget as required by claim 1. We agree. The Examiner relies on paragraphs 110-112 of Phelan for disclosing this subject matter. We find that paragraph [0112] of Phelan does teach reconciliation but there is no indication that the reconciliation is between the reserved or impounded portions of a budget and an actual marketing cost. In Phelan, the reconciliation is between budgets (i.e., impounded portions), rather than a budget and an actual cost of the advertisement. All the reconciliation is done by a marketing planner 312 in a planning process and involves expected sales not actual sales Therefore, we will not sustain the rejection as directed to independent claims 1 and claims 2-17 dependent therefrom. We will also not sustain the rejection as it is directed to claim 19 and claims 20-32 and 34--38 dependent therefrom because the Examiner has not established that Phelan discloses a computer operable to reconcile the difference between the impounded portion and an actual cost. DECISION The decision of the Examiner is reversed. ORDER REVERSED 3 Copy with citationCopy as parenthetical citation