Ex Parte Nesvadba et al

Patent Trial and Appeal Board

Sep 24, 2013

11570807 (P.T.A.B. Sep. 24, 2013)

UNITED STATES PATENT AND TRADEMARK OFFICE
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BEFORE THE PATENT TRIAL AND APPEAL BOARD
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Ex parte JAN ALEXIS DANIEL NESVADBA and IGOR
ALEXANDROVICH NAGORSKI
1

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Appeal 2011-003172
Application 11/570,807
Technology Center 2400
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Before DAVID M. KOHUT, JASON V. MORGAN, and LARRY J. HUME,
Administrative Patent Judges.

PER CURIAM.

DECISION ON APPEAL
This is a decision on appeal under 35 U.S.C. § 134(a) of the Final
Rejection of claims 22-40. Appellants have previously canceled claims 1-
21. We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.

1
The Real Party in Interest is Koninklijke Philips Electronics N.V. App.
Br. 2.
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Application 11/570,807

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STATEMENT OF THE CASE
2

The Invention
Appellants’ invention relates to the field of automatically and/or
dynamically determining a channel content for channels, such as television
channels available on a television set, and a system for providing automatic
and/or dynamic determination of content. Spec. 1:1-4.
Exemplary Claims
Claim 22 is an exemplary claim representing an aspect of the
invention which we reproduce below:
22. A method of automatically determining content of
a plurality of audio, video, and/or multi-media channels
distributed to or acquired by an electronic device, the method
comprising the steps of:
collecting data for each channel of the plurality of
channels, including processing of an audio, a video, and/or a
multi-media signal transmitted or distributed via said each
channel of the plurality of channels to collect said data;
analyzing the data with the electronic device to identify
content of each channel of the plurality of channels, wherein
said content identification includes processing of the audio,
video, and/or multi-media signal to automatically detect genre
associated with channel content, and categorizing, with the
electronic device, at least one channel of the plurality of
channels into at least one predetermined cluster depending on
the channel content identified by the data analysis.

2
Our decision refers to Appellants’ Appeal Brief (“App. Br.,” filed
June 7, 2010); Examiner’s Answer (“Ans.,” mailed Sep. 1, 2010); Final
Office Action (“FOA,” mailed Jan. 6, 2010); and the original Specification
(“Spec.,” filed Dec. 18, 2006).
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Application 11/570,807

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Prior Art
The Examiner relies upon the following prior art in rejecting the
claims on appeal:
Gill US 2002/0083451 A1 June 27, 2002
Ellis US 2004/0117831 A1 June 17, 2004
“Automatic Recognition of Film Genres,” Stephan Fischer,
Rainer Lienhart and Wolfgang Effelsberg, International
Multimedia Conference archive, Proceedings of the third ACM
International Conference on Multimedia, 1995, pp. 295-304.
(Hereinafter “Fischer”)
Rejections on Appeal
1. Claims 22-32 and 34-40 stand rejected under 35 U.S.C.
§ 103(a) as being unpatentable over the combination of Ellis and Fischer.
Ans. 4.
2. Claim 33 stands rejected under 35 U.S.C. § 103(a) as being
unpatentable over the combination of Ellis, Fischer, and Gill. Ans. 11.
ISSUE
Appellants argue (App. Br. 13-17) that the Examiner’s rejection of
claim 22 under 35 U.S.C. § 103(a) as being unpatentable over the
combination of Ellis and Fischer is in error. These contentions present us
with the following issues:
Did the Examiner err in rejecting claim 22 over the combination of
Ellis and Fischer because: (1) Ellis does not teach or suggest “analyzing the
data . . . to identify content,” as claimed, (2) the Examiner failed to provide
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Application 11/570,807

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an articulated reasoning with a rational underpinning as required by KSR to
support the legal conclusion of obviousness, and (3) the proposed
modification of Ellis to include the automatic genre detection of Fischer
would require substantial reconstruction or redesign, or change in basic
operating principles?
ANALYSIS
Only those arguments actually made by Appellants have been
considered in this decision. Arguments which Appellants could have made
but chose not to make in the Briefs have not been considered, and are
deemed to be waived. See 37 C.F.R. § 41.37(c)(1)(vii).
In the Appeal Brief, Appellants only present substantive arguments
against the rejection of independent claim 22, particularly against the
combination of Fischer and Ellis, and do not separately or substantively
argue against the rejection of independent claims 38-40 or dependent claims
23-37. See App. Br. 17-22. We therefore find independent claim 22 to be
representative of the claims on appeal.
On the record before us, we find the preponderance of the evidence
supports the Examiner’s conclusion that the combined teachings of Ellis and
Fischer would have suggested the subject matter of representative claim 22.
Ans. 4-5 and 12-18. Specifically, the Examiner has provided a
comprehensive response, see Ans. 12-18, to Appellants’ arguments, see
App. Br. 13-17. We have reviewed the Examiner’s response, and the
Examiner’s findings. Fin. Rej. 2-3. We find that both the response and
findings are supported by ample evidence. Accordingly, we adopt as our
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own (1) the findings and reasons set forth by the Examiner in the action
from which this appeal is taken and (2) the reasons set forth by the Examiner
in the Examiner’s Answer in response to Appellants’ Appeal Brief.
Accordingly, we sustain the Examiner’s rejection of this claim, as
well as dependent claims 23-32 and 34-37 for the reasons set forth in the
Answer, which we incorporate herein by reference. Ans. 1 et seq.
§ 103(a) Rejection of Claim 33 over Ellis, Fischer, and Gill
Appellants contend that claim 33 is patentable over the reference
combination “for at least the same reasons as articulated above in connection
with claim 22.” App. Br. 18. Lacking substantive arguments against the
rejection, we pro forma adopt the Examiner’s findings (Ans. 11-12), and
affirm the Examiner’s rejection of claim 33.
CONCLUSION
The Examiner did not err with respect to the unpatentability rejections
of claims 22-40 under 35 U.S.C. § 103(a) over the cited prior art, and the
rejections are sustained.
DECISION
The decision of the Examiner to reject claims 22-40 is affirmed.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv) (2011).
AFFIRMED
ELD