Ex Parte Millington et al

Patent Trial and Appeal Board

Aug 22, 2016

13667691 (P.T.A.B. Aug. 22, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
13/667,691 11102/2012 Jeffrey A. Millington
109676 7590 08/24/2016
Brooks Kushman P,C,/Harman
1000 Town Center
Twenty Second Floor
Southfield, MI 48075
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.
HARM0297PUS 1 2968
EXAMINER
BURKE, JEFF A
ART UNIT PAPER NUMBER
2159
NOTIFICATION DATE DELIVERY MODE
08/24/2016 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):
docketing@brookskushman.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte JEFFREY A. MILLINGTON, DAVID GERSABECK, and
JEFFREY JANUS
Appeal2015-000837
Application 13/667 ,691
Technology Center 2100
Before JEAN R. HOMERE, CAROLYN D. THOMAS, and
KARA L. SZPONDOWSKI, Administrative Patent Judges.
THOMAS, Administrative Patent Judge.
DECISION ON APPEAL
Appellants seek our review under 35 U.S.C. § 134(a) of the
Examiner's final rejection of claims 1-20, all of the pending claims in the
present application. We have jurisdiction over the appeal under 35 U.S.C.
§ 6(b ).
We AFFIRM-IN-PART.
The present invention relates generally to receiving broadcasts
according to a plurality of broadcast formats and determining broadcast
information associated with each received broadcast. See Abstract.
Appeal2015-000837
Application 13/667 ,691
Claim 1 is illustrative:
1. A system comprising:
a memory being a computer-readable storage media
configured to store a database having a plurality of fields, the plurality
of fields include a plurality of user preferences;
a processor in communication with the memory, the
processor configured to:
receive a plurality of broadcasts each transmitted
according to at least one broadcast format;
determine broadcast information associated with a first
broadcast of the plurality of broadcasts;
determine a rating of the first broadcast based on the
plurality of user preferences;
play the first broadcast;
monitor a second broadcast of the plurality of broadcasts
that is transmitted;
determine broadcast information associated with the
second broadcast;
determine a rating of the second broadcast based on the
plurality of user preferences; and
generate notification of the second broadcast when the
rating of the second broadcast is higher than the rating of the first
broadcast.
Appellants appeal the Examiner's rejection of claims 1-20 under
35 U.S.C. § 103(a) as being unpatentable over Ellis (US 2004/0116088 Al,
June 17, 2004) and Gupta (US 2007/0143816 Al, June 21, 2007).
ANALYSIS
Claims 1--8, 10, 11, and 13-20
Issue 1: Did the Examiner err in finding that the combined
disclosures of Ellis and Gupta teach or suggest generating notification of the
second broadcast when the rating of the second broadcast is higher than the
rating of the first broadcast, as set forth in claim 1?
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Appellants contend "[t]he rankings of Gupta do not resolve conflicts
as to an 'on-channel' and an 'off-channel[,]' [t]hus, Gupta does not teach
rankings related to a 'first broadcast' . . . the rankings of Gupta are used to
rank second, 'off-channel,' broadcast amongst themselves" (App. Br. 7).
Appellants further contend that "Gupta does not determine if 'the rating of
the second broadcast is higher than the rating of the first broadcast.' Instead,
Gupta uses the rankings of the off-channel broadcasts, irrespective of any
'first broadcast rating"' (id.).
The Examiner finds "that Ellis does disclose generating a notification
to a user, when an item of content is of interest, on another station ... Ellis
at least discloses generating a notification to the user of the second broadcast
based upon a condition, and that the condition is a rating of like" (Ans. 3,
citing Ellis i-f 166). The Examiner further finds that "Gupta discloses the
ability not only to identify preferred content but also to rank or rate it ... to
resolve a conflict between two items of content on two separate channels ...
and to switch to the item of content that is ranked higher" (Ans. 3, citing
Gupta i-f 67). We agree with the Examiner.
We refer to, rely on, and adopt the Examiner's findings and
conclusions set forth in the Answer. Our discussions here will be limited to
the following points of emphasis.
Here, the Examiner is relying on the combined teachings of Ellis and
Gupta. In contrast, and Appellants' arguments are merely directed towards
Gupta, and do not take into account what the collective teachings of the prior
art would have suggested to one of ordinary skill in the art and is therefore
ineffective to rebut the Examiner's prima facie case of obviousness. See In
re Keller, 642 F.2d 413, 425 (CCPA 1981)("The test for obviousness is not
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Application 13/667 ,691
whether the features of a secondary reference may be bodily incorporated
into the structure of the primary reference; nor is it that the claimed
invention must be expressly suggested in any one or all of the references.
Rather, the test is what the combined teachings of the references would have
suggested to those of ordinary skill in the art.") (citations omitted). This
reasoning is applicable here because Ellis is used to teach generating a
notification of a second broadcast, possibly based on a rating (see Ellis i-f
166) and Gupta teaches using ratings/rankings to resolve conflicts, i.e.
selecting the content based on its relative rating/ranking (see Gupta i-f 67).
Specifically, Ellis discloses "a user may be allowed to rate a group ...
the system may notify the user when it recognizes an item that is a member
of a group liked by the user when it occurs on a station not being listened to
by the user but that is being monitored by the system" (see Ellis i-f 166).
Similarly, Gupta discloses "the user may not only identify preferred content,
but may also rank or rate it. ... Such rankings may allow the device to
resolve conflicts when more than one off-channel is identified as playing
preferred content ... by selecting the off-channel content to ... switch to"
(Gupta i-f 67). In other words, Ellis discloses notifying a user about preferred
content on a station not being listened to, and Gupta discloses using
ratings/rankings to decide which content to switch to.
Therefore, we agree with the Examiner that the combined teachings of
Ellis and Gupta teach or suggest to generate notification of the second
broadcast when the rating of the second broadcast is higher than the rating of
the first broadcast.
Accordingly, we sustain the Examiner's rejection of claim 1.
Appellants' arguments regarding the Examiner's rejection of independent
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claims 17 and 19 rely on the same arguments as for claim 1, and Appellants
do not argue separate patentability for dependent claims 2-8, 10, 11, 13-16,
18, and 20. See App. Br. 6-7. We, therefore, also sustain the Examiner's
rejection of claims 2-8, 10, 11, and 13-20.
Claim 9
Issue 2: Did the Examiner err in finding that Gupta teaches or
suggests storing the second entry in the database only after confirmation, as
set forth in claim 9?
Appellants contend that "Gupta does not 'store a second entry' 'only
after confirmation' that the associated broadcast 'is a preferred broadcast
based on the rating of the second broadcast' ... Gupta maintains the 'user
preference database' based on user selections" (App. Br. 8). We agree with
Appellants.
Although the Examiner finds that "Gupta discloses the ability to
populate a user preferences database with information regarding
programming preferred by the user ... this preference information is stored
to the user preference database after confirmation of the preference
information" (Ans. 4, citing Gupta i-fi-163---64), the Examiner fails to show
that such information is stored only after confirmation, as required by claim
9. In other words, while the Examiner has shown that Gupta may store a
channel that the user repeatedly switches from (see Ans. 4, citing Gupta
i164), the Examiner fails to explain how such a selection illustrates a
confirmation of the selection prior to storing the same. Furthermore, even if
we find that this repeated switching from a channel in Gupta acts as a
confirmation, we find that such "repeated switching" points to content that
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Application 13/667 ,691
the user has little interest in (see id.), not a preferred broadcast based on the
rating, as required by claim 9. Also, as pointed out by Appellants, Gupta
discloses "a user may also manually populate some or all of the information
in the user preference database" (see Gupta i-f 66). As such, we find that the
Examiner has not shown that Gupta stores second preferred content only
after confirmation.
In view of the above discussion, we are of the opinion that the
proposed combination of references set forth by the Examiner does not
support the obviousness rejection. We, accordingly, do not sustain the
rejection of dependent claim 9.
Claim 12
Issue 3: Did the Examiner err in finding that Gupta teaches or
suggests comparing the rating of the first broadcast and the rating of the
second broadcast, as set forth in claim 12?
Appellants contend that "Gupta does not 'compare' the ratings of 'the
first broadcast' and 'the second broadcast.' Rather, Gupta simply uses the
ratings of the second 'off-channel' broadcasts to resolve conflicts of
preferred content" (App Br. 9).
In response, the Examiner finds that "Gupta specifically teaches that
the comparison could be between on-channel and off-channel content ...
can be used to switch the channel to a new channel" (Ans. 5, citing Gupta i-f
64). We agree with the Examiner.
For example, Gupta discloses that "[t]his information could be used to
further refine decisions regarding which channels to switch to" (Gupta i-f 64)
and that "[ s ]uch rankings may allow the device to resolve conflicts ... by
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selecting the off-channel content to ... switch to etc. based on the relative
rankings specified by the user" (Gupta i-f 67). We find that switching
channels based on the relative rankings as disclosed in Gupta includes a
comparison of the rankings between two channels and further obviously
includes switching from an on-channel to an off-channel. Although Gupta
looks at conflicts between off-channel (see Gupta i-f 67), the actually
switching of channels is between an on-channel and off-channel based on
the relative rankings.
Accordingly, we sustain the Examiner's rejection of claim 12.
DECISION
We affirm the Examiner's§ 103(a) rejection of claims 1-8 and 10-20.
We reverse the Examiner's§ 103(a) rejection of claim 9.
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
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