Ex Parte Pudar

Board of Patent Appeals and Interferences

Apr 30, 2008

09870377 (B.P.A.I. Apr. 30, 2008)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________________

Ex parte NICK J. PUDAR
____________________

Appeal 2008-0410
Application 09/870,377
Technology Center 3600
____________________

Decided: April 30, 2008
____________________

Before: TERRY J. OWENS, HUBERT C. LORIN and
STEVEN D.A. McCARTHY, Administrative Patent Judges.

McCARTHY, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE 1
The Appellant appeals under 35 U.S.C. § 134 (2002) from the final 2
rejection of claims 1-45. We have jurisdiction under 35 U.S.C. § 6(b) 3
(2002). 4
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The claims on appeal relate to a radio system and method for 1
delivering advertising content to an occupant of a vehicle such as an 2
automobile. Independent claim 1 is representative of the Appellant’s claims 3
and reads as follows: 4
5
1. A method of delivering advertising 6
content to a vehicle occupant using a vehicle radio, 7
comprising the steps of: 8
receiving a radio advertisement; 9
storing the radio advertisement in memory; 10
receiving a radio broadcast stream; 11
monitoring the received radio broadcast 12
stream for marker data indicative of an advertising 13
slot within the radio broadcast stream; and 14
playing the radio broadcast stream using the 15
vehicle radio and, in response to detecting the 16
marker data, accessing the radio advertisement 17
from memory and playing the radio advertisement 18
in the advertising slot using the vehicle radio. 19
20
Claims 1-13, 16-19 and 21-41 stand rejected under 35 U.S.C. § 102(b) 21
(2002) as being anticipated by Dimitriadis (U.S. Patent 5,664,948). Claims 22
14, 15, 20 and 42-45 stand rejected under 35 U.S.C. § 103(a) (2002) as being 23
unpatentable over Dimitriadis in view of Hite (U.S. Patent 5,774,170). 24
We REVERSE the rejection of claims 1-13, 16-19 and 21-41 under 25
section 102(b) as being anticipated by Dimitriadis. We REVERSE the 26
rejection of claim 42 under section 103(a) as being unpatentable over 27
Dimitriadis in view of Hite. We AFFIRM the rejection of claims 14, 15, 20 28
and 43-45 under section 103(a) and designate the grounds of the affirmance 29
as new grounds of rejection. We enter NEW GROUNDS OF REJECTION 30
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against claims 1-7, 13, 16, 17 and 21-25 under section 103(a) as being 1
unpatentable over Dimitriadis in view of Hite. 2
3
ISSUES 4
The four primary issues in this appeal are: 5
(1) Whether Dimitriadis discloses, or Dimitriadis and Hite suggest, 6
using marker data in a radio broadcast stream to identify the location of an 7
advertising slot (see App. Br. 10); 8
(2) Whether Dimitriadis discloses, or Dimitriadis and Hite suggest, 9
inserting a radio advertisement into an advertising slot so that the 10
advertisement is included within audio content sent to an input of a vehicle 11
radio which is coupled to a radio broadcast receiver (see Reply Br. 4-5); 12
(3) Whether Dimitriadis and Hite suggest using advertisement data to 13
determine which received radio advertisements to store in memory (App. Br. 14
13-14) or, more specifically, whether these references suggest storing 15
selected advertisements on a recording device based on a comparison of 16
primary selection data stored in a vehicle radio system with primary 17
selection data included with the advertisement (App. Br. 19-20); and 18
(4) Whether Dimitriadis and Hite suggest selecting a stored 19
advertisement based on secondary selection data for playback via the vehicle 20
radio during an advertising slot (App. Br. 19-20). 21
22
FINDINGS OF FACT 23
The record supports the following findings of fact (“FF”) by a 24
preponderance of the evidence. 25
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1. Dimitriadis discloses a travel information device including a car 1
radio and a paging device which together collect and store advertising 2
content for later presentation. (Dimitriadis, col. 2, ll. 64-67). The travel 3
information device includes an antenna, a data radio receiver for receiving a 4
voice broadcast and a voice radio receiver for receiving a data broadcast. 5
The voice radio receiver delivers a voice signal derived from the voice 6
broadcast to the microprocessor and separately to an amplifier which drives 7
speakers to play the voice broadcast. (Dimitriadis, col. 4, ll. 1-3, 47-48 and 8
55-58). 9
2. The travel information device additionally includes a memory 10
resource for storing indexed advertising content received through the data 11
broadcast or copied from the voice broadcast. (Dimitriadis, col. 4, ll. 24-26 12
and col. 5, ll. 1-3). The memory resource stores advertisements in data 13
structures which include fields for containing condition lists providing sets 14
of conditions indicating presentation of the associated advertising content. 15
(Dimitriadis, col. 5, l. 66 – col. 6, l. 1). “Once advertisements from voice 16
and data broadcast 22 and 26 are stored within device 40, subsequent 17
conditions or explicit commands trigger presentation thereof to the operator 18
of vehicle 10 . . . .” (Dimitriadis, col. 4, ll. 26-32). 19
3. The microprocessor detects subsequent conditions which might 20
trigger presentation of an advertisement by means of a repeating control loop 21
which, once entered, repeats as a background process monitoring subsequent 22
conditions and seeking stored advertisements having matching conditions in 23
their condition lists. (Dimitriadis, col. 8, l. 64 – col. 9, l. 1). “Upon finding 24
a match between current conditions and members of any condition list 400b, 25
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microprocessor 60 queues the associated [stored advertisements] for 1
presentation . . . .” (Dimitriadis, col. 9, ll. 1-5). 2
4. One command which the travel information device might 3
receive through the data broadcast is a “PRESENT” command. “PRESENT 4
command 500c and its index parameter cause device 40 to present the 5
associated advertisement information, i.e., queue for presentation the record 6
400 bearing the associated index.” (Dimitriadis, col. 6, ll. 54-57 and col. 8, 7
ll. 20-25). 8
5. Dimitriadis teaches that: 9
10
An advertisement presentation block 104 11
receives from microprocessor 60 an index value 12
and has direct access to the memory resource 90 13
for presentation of advertisements stored therein. 14
Thus, microprocessor 60 queues advertisement 15
presentation by providing a sequence of index 16
values to the advertisement presentation block 104. 17
The advertisement presentation block, in turn, 18
accesses memory resource 90 by reference to a 19
queued index value and collects the requested 20
advertisement record 400 for presentation. 21
22
(Dimitriadis, col. 5, ll. 7-15). The Examiner has not identified a disclosure 23
in the reference sufficient to show that an advertisement is played when 24
queued. 25
6. When an advertisement is played, the advertising presentation 26
block delivers stored audio advertising content to the amplifier which drives 27
the speakers. (Dimitriadis, col. 5, ll. 19-24). The Examiner has not 28
identified a disclosure in the reference sufficient to show that the advertising 29
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presentation block communicates with the amplifier through the input 1
coupled to the voice radio receiver. 2
7. Dimitriadis teaches that the system which generates the data 3
broadcast “supports group addressing whereby a single paging data packet 4
transmission may be addressed to groups of receiving devices. . . . By 5
loading into receiving devices 40 advertisements tailored to group needs, the 6
advertiser targets specific audiences with specific advertising messages.” 7
(Dimitriadis, col. 9, ll. 44-46 and 52-54). 8
8. Hite teaches systems and processes for delivering television and 9
radio advertising content targeted to individuals’ desires and needs. (Hite, 10
col. 1, ll. 7-10). One of Hite’s systems includes an individually addressable 11
digital recording device at the site where the advertising content is to be 12
delivered. The recording device stores predetermined consumer 13
identification codes [“CID codes”] chosen for the consumer. (Hite, col. 6, l. 14
60 – col. 7, l. 3). 15
9. The system receives advertisements with attached CID codes 16
and codes indicating conditions and rules required to play each 17
advertisement. These conditions and rules may include a condition or rule 18
regarding the day-part required to play an advertisement. The system stores 19
in the recording device advertisements selected by comparing the CID code 20
attached to each received advertisement with the predetermined CID codes 21
previously stored in the recording device. (Hite, col. 7, ll. 7-12). 22
10. Suitable reception equipment at the site receives a broadcast 23
including breaks or slots having unique CID codes and plays the broadcast 24
content. (Hite, col. 7, ll. 15-16 and 41-42). The broadcast includes default 25
advertisements in these slots. (Hite, col. 7, ll. 20-22). Hite suggests that the 26
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unique CID codes in the broadcast be indistinguishable by ordinary means 1
so that the codes cannot be used by illegitimate electronic devices to “zap” 2
advertisements. (Hite, col. 13, ll. 47-57). This warning would have implied 3
to one of ordinary skill in the art that the unique CID codes are indicative of 4
such advertising slots and that one might use the codes to find such slots. 5
11. A “commercial processor” in Hite’s system “would look for the 6
CID in each incoming commercial at a break during a broadcast program.” 7
(Hite, col. 7, ll. 24-26). If the commercial processor detects a CID code at 8
the break and if there is a stored advertisement having codes indicating that 9
the advertisement may be played in the advertising slot, the stored 10
advertisement is accessed from the recording device and played in the slot 11
instead of the default advertisement. (Hite, col. 7, ll. 26-30). 12
13
PRINCIPLES OF LAW 14
“To anticipate a claim, a prior art reference must disclose every 15
limitation of the claimed invention, either explicitly or inherently.” In re 16
Schreiber, 128 F.3d 1473, 1477 (Fed. Cir. 1997). In determining whether 17
limitations recited in the claim are disclosed by the reference, the language 18
of the claim is to be given its “broadest reasonable interpretation consistent 19
with the specification,” construing the claim language and specification as 20
they would be understood by one of ordinary skill in the art. In re American 21
Acad. of Science Tech Ctr., 367 F.3d 1359, 1364 (Fed. Cir. 2004) (quoting 22
In re Bond, 910 F.2d 831, 833 (Fed. Cir. 1990)). 23
A claim is unpatentable for obviousness under 35 U.S.C. § 103(a) if 24
“the differences between the subject matter sought to be patented and the 25
prior art are such that the subject matter as a whole would have been obvious 26
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at the time the invention was made to a person having ordinary skill in the 1
art to which said subject matter pertains.” In Graham v. John Deere Co., 2
383 U.S. 1 (1966), the Supreme Court set out factors to be considered in 3
determining whether claimed subject matter would have been obvious: 4
5
Under § 103, the scope and content of the prior art 6
are to be determined; differences between the prior 7
art and the claims at issue are to be ascertained; 8
and the level of ordinary skill in the pertinent art 9
resolved. Against this background, the 10
obviousness or nonobviousness of the subject 11
matter is determined. 12
13
Id., 383 U.S. at 17. 14
15
ANALYSIS 16
A. The Rejection of Claims 1-13, 16-19 and 21-25 Under Section 17
102(b) As Being Anticipated by Dimitriadis 18
Independent claim 1 recites a method including the steps of 19
“monitoring the received radio broadcast stream for marker data indicative 20
of an advertising slot within the radio broadcast stream” and, “in response to 21
detecting the marker data, . . . playing the radio advertisement in the 22
advertising slot using the vehicle radio.” We agree with the Appellants 23
(App. Br. 10) that “[t]he use of marker data in the radio broadcast stream to 24
identify the location of an advertising slot is not taught or suggested by 25
Dimitriadis.” 26
The Examiner has identified only two items disclosed expressly or 27
inherently in Dimitriadis which might constitute “marker data.” The 28
Examiner finds that the “PRESENT” command constitutes “marker data” 29
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within the meaning of claim 1. (Ans. 3). The Examiner also finds that the 1
detection of a condition included in an advertisement’s condition list 2
constitutes “marker data.” (Ans. 3). The Examiner has not identified any 3
disclosure in Dimitriadis which might suggest a relationship between the 4
timing of advertising slots, on the one hand, and either the transmission of a 5
“PRESENT” command, the occurrence of a condition of an advertisement’s 6
condition list or the timing of the control loop by which the microprocessor 7
searches for conditions, on the other, sufficient to show that any of these 8
events are indicative of an advertising slot. 9
Although Dimitriadis discloses that the detection of a “PRESENT” 10
command causes an advertisement to be queued for presentation (FF 4) and 11
that the detection of a condition on the condition list of an advertisement 12
likewise causes the advertisement to be queued (FF 3), the Examiner has not 13
identified any disclosure in Dimitriadis sufficient to show that an 14
advertisement is played when queued (FF 5). Even were a “PRESENT” 15
command identifying an advertisement or a condition on an advertisement’s 16
condition list indicative of a particular advertising slot, we would agree with 17
the Appellants (App. Br. 11 and 12) that the reference fails to disclose the 18
step of playing the advertisement in the indicated slot in response to the 19
detection of such a command or condition. 20
On the record before us, the Appellants have shown that the Examiner 21
erred in rejecting independent claim 1 under section 102(b). Likewise, the 22
Appellants have shown that the Examiner erred in rejecting dependent 23
claims 2-13, 16-19 and 21-25 under section 102(b). 24
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B. The Rejection of Claims 26-41 Under Section 102(b) As Being 1
Being Anticipated by Dimitriadis 2
Independent claim 26 recites a radio system for a vehicle including a 3
“vehicle radio having an input for receiving audio data . . .” and a radio 4
broadcast receiver “coupled to the input of the vehicle radio to provide the 5
vehicle radio with the received audio content . . . .” On receipt of a marker 6
identifying an advertising slot, an advertising control unit of the radio 7
system “is operable to access one of the stored radio advertisements, with 8
the accessed radio advertisement being inserted into the advertising slot 9
identified by the received marker so that the accessed radio advertisement is 10
included within the audio content sent to the input of the vehicle radio.” 11
[Emphasis added.] We agree with the Appellants (Reply Br. 4-5) that 12
Dimitriadis’ Fig. 2 appears to be consistent with a system which sends the 13
stored advertising content to the amplifier independently of the voice signal. 14
The Examiner has not identified a disclosure in Dimitriadis sufficient to 15
show that the advertising presentation block communicates with the 16
amplifier through the input coupled to the voice radio receiver (FF 6). 17
On record before us, the Appellants have shown that the Examiner 18
erred in rejecting independent claim 26 under section 102(b). Likewise, the 19
Appellants have not shown that the Examiner erred in rejecting dependent 20
claims 27-41 under section 102(b). 21
22
C. The Rejection of Claims 14, 15 and 20 Under Section 103(a) As 23
Being Unpatentable Over Dimitriadis in View of Hite 24
Claim 14 ultimately depends from claims 1 and 4. The Appellants 25
present no arguments suggesting that claim 14 might be patentable if claims 26
1 and 4 were determined to be unpatentable. (See App. Br. 10 and 19). 27
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Claims 15 and 20 ultimately depend from claim 1. The Appellants present 1
no arguments suggesting that claims 15 and 20 might be patentable if claim 2
1 were determined to be unpatentable. (See id.). 3
With respect to the Appellants’ arguments regarding parent claim 1 4
(App. Br. 10 and 19), Hite would have suggested to one of ordinary skill in 5
the art monitoring a received broadcast stream for marker data indicative of 6
an advertising slot within the broadcast stream. The reference also would 7
have suggested to one of ordinary skill in the art playing the radio 8
advertisement in the advertising slot using the vehicle radio in response to 9
detecting the marker data. (FF 11). 10
Hite does not teach expressly that the commercial processor monitors 11
the broadcast for CID codes indicative of advertising slots. Nevertheless, 12
one typically cannot patent “the mere application of a known technique to a 13
piece of prior art ready for improvement.” KSR Int’l Co. v. Teleflex, Inc., 14
127 S.Ct. 1727, 1740 (2007). Hite, like Dimitriadis, teaches systems and 15
processes capable of delivering radio advertising content targeted to 16
individuals’ desires and needs. (Compare FF 7 with 8). Both Dimitriadis 17
and Hite also teach storing targeted advertising content at the site where the 18
content is to be delivered and inserting the targeted advertising into a 19
broadcast. (Compare FF 1 with FF 9). 20
Hite teaches inserting marker data, that is, a unique CID code, into the 21
broadcast in each advertising slot having a default advertisement subject to 22
replacement. (FF 10). The reference suggests that these unique CID codes 23
can be used to find advertising slots. (Id.). The reference teaches that a 24
commercial processor looks for the CID code in each incoming 25
advertisement at a break during a broadcast program. (FF 11). These 26
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teachings and suggestions would have provided one of ordinary skill in the 1
art reason to modify Dimitriadis’ voice broadcast to include unique CID 2
codes inserted in advertising slots; to modify the programming of 3
Dimitriadis’ microprocessor to look for such CID codes in the voice 4
broadcast; and to additionally modify the programming of Dimitriadis’ 5
microprocessor to access an advertisement from memory and play the 6
advertisement in the advertising slot identified by the unique CID code in 7
response to detection of that CID code in the voice broadcast. 8
Such modifications would have been within the level of ordinary skill 9
in the art as evidence by the disclosures of Dimitriadis and Hite. See 10
Okajima v. Bourdeau, 261 F.3d 1350, 1355 (Fed. Cir. 2001) (Prior art 11
references relied on by the Examiner may serve as evidence of the level of 12
ordinary skill in the art). One of ordinary skill in the art could have 13
predicted that modifying the programming of Dimitriadis’ microprocessor to 14
monitor a received voice broadcast for CID codes indicative of advertising 15
slots would permit the microprocessor to find such advertising slots to insert 16
advertisements previously selected for storage in local memory based on 17
predetermined CID codes targeting particular recipients. 18
Parent claim 4 recites that each of a plurality of radio advertisements 19
“is accompanied by advertising data associated with the received radio 20
advertisement” and that a step of “selecting certain ones of the received 21
radio advertisements” includes “selecting certain ones of the different radio 22
advertisements using the advertisement data associated with the different 23
radio advertisements.” The Appellants contend that “Dimitriadis nowhere 24
discloses this claimed use of advertisement data in determining which 25
received advertisement to store” (App. Br. 14) and that the Examiner has not 26
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pointed to any teachings in Hite by which this feature would have been 1
obvious (App. Br. 19). Hite teaches selecting advertisements to be stored at 2
the site by comparing CID codes transmitted with the advertisement against 3
predetermined CID codes stored at the site where the advertising content is 4
to be delivered. (FF 9). 5
On the record before us, the Appellants have not shown that the 6
Examiner erred in rejecting claims 14, 15 and 20. 7
8
D. The Rejection of Claim 42 Under Section 103(a) As 9
Being Unpatentable Over Dimitriadis in View of Hite 10
Claim 42 ultimately depends from claim 26. Parent claim 26 recites a 11
radio system for a vehicle including a “vehicle radio having an input for 12
receiving audio data . . .” and a radio broadcast receiver “coupled to the 13
input of the vehicle radio to provide the vehicle radio with the received 14
audio content . . . .” On receipt of a marker identifying an advertising slot, 15
an advertising control unit of the radio system “is operable to access one of 16
the stored radio advertisements, with the accessed radio advertisement being 17
inserted into the advertising slot identified by the received marker so that the 18
accessed radio advertisement is included within the audio content sent to the 19
input of the vehicle radio.” [Emphasis added.] We conclude that 20
Dimitriadis does not teach or suggest these limitations for essentially the 21
reasons given in connection with the patentability of claim 26 under section 22
102(b). We have not been directed to any teaching in Hite which would 23
have provided one of ordinary skill in the art reason to modify Dimitriadis’ 24
system to meet these limitations. Hite does not address expressly a vehicle 25
radio system. 26
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On the record before us, the Appellants have shown that the Examiner 1
erred in rejecting claim 42. 2
3
E. The Rejection of Claims 43-45 Under Section 103(a) As 4
Being Unpatentable Over Dimitriadis in View of Hite 5
Independent claim 43 recites a radio broadcast system including “one 6
or more radio broadcast transmitting facilities that provide . . . a second 7
radio broadcast stream which includes audio content that contains 8
intermittent advertising slots each identified by a marker contained with that 9
broadcast stream . . . .” The Appellants contend that this limitation is not 10
suggested by Dimitriadis and Hite. (App. Br. 19). We disagree for reasons 11
given earlier in connection with the patentability of claims 14, 15 and 20. 12
Independent claim 43 further recites: 13
14
storing selected ones of said advertisements on 15
said recording device based on a comparison of 16
primary selection data stored in said vehicle radio 17
system with the primary selection data that is 18
included with said advertisements, . . . wherein 19
said primary selection data includes one or more 20
data items associated with . . . a user of the 21
vehicle . . . . 22
23
We disagree with the Appellants’ contention (App. Br. 19-20) that this 24
limitation is not suggested by Dimitriadis and Hite. Dimitriadis teaches 25
targeting advertisements to groups of listeners by using group addressing 26
and loading into storage only advertisements tailored to group needs. (FF 27
7). Hite teaches selecting advertisements to be stored at the site by 28
comparing the CID codes associated with each received advertisement with 29
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predetermined CID codes stored at the site where the advertising content is 1
to be delivered. (FF 7-8). 2
Independent claim 43 also recites “selecting one of said stored 3
advertisements based on said secondary selection data for playback via the 4
vehicle radio . . . .” We disagree with the Appellants contention (App. Br. 5
19-20) that this limitation is not suggested by Dimitriadis and Hite. The 6
present Specification identifies several examples of such secondary selection 7
data including time of day criteria. (Spec. 12, ll. 31-32). Hite teaches 8
including among the codes attached to an advertisement a condition or rule 9
regarding the day-part required to play the advertisement. (FF 9). 10
On the record before us, the Appellants have not shown that the 11
Examiner erred in rejecting independent claim 43 under section 103(a). 12
Likewise, the Appellants have not shown that the Examiner erred in 13
rejecting dependent claims 44 and 45 under section 103(a). In re Dillon, 919 14
F.2d 688, 692 (Fed. Cir. 1990) (en banc). 15
16
CONCLUSIONS OF LAW 17
On the record before us, the Appellants have shown that the Examiner 18
erred in rejecting claims 1-13, 16-19, and 21-41 under section 102(b) as 19
being anticipated by Dimitriadis and in rejecting claim 42 under section 20
103(a) as being unpatentable over Dimitriadis in view of Hite. The 21
Appellants have not shown that the Examiner erred in rejecting claims 14, 22
15, 20 and 43-45 under section 103(a). Since the rationale by which we 23
affirm the rejection of claims 14, 15, 20 and 43-45 differs from that 24
articulated by the Examiner, we designate the grounds of the affirmance as 25
new grounds of rejection under 37 C.F.R. § 41.50(b) (2007). 26
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NEW GROUNDS OF REJECTION 1
Pursuant to 37 C.F.R. § 41.50(b), we enter the following additional 2
new grounds of rejection: 3
4
Claim Rejection – 35 U.S.C. § 103(a) 5
1. The following is a quotation of 35 U.S.C. § 103(a) that forms 6
the basis for the new ground of rejection: 7
8
(a) A patent may not be obtained though the 9
invention is not identically disclosed or described 10
as set forth in section 102 of this title, if the 11
differences between the subject matter sought to be 12
patented and the prior art are such that the subject 13
matter as a whole would have been obvious at the 14
time the invention was made to a person having 15
ordinary skill in the art to which said subject 16
matter pertains. Patentability shall not be 17
negatived by the manner in which the invention 18
was made. 19
20
2. Claims 1-13, 16-19 and 21-25 are rejected under 35 U.S.C. 21
§ 103(a) as being unpatentable over Dimitriadis (U.S. Patent 5,664,948) in 22
view of Hite (U.S. Patent 5,774,170). 23
3. With respect to claims 1, 3, 16 and 21-25, Dimitriadis teaches a 24
method of delivering advertising content to a vehicle occupant using a 25
vehicle radio including the steps of receiving a radio advertisement (FF 1); 26
storing the radio advertisement in memory (FF 2); receiving a radio 27
broadcast stream (FF 1); playing the radio broadcast stream using the vehicle 28
radio (id.); accessing the radio advertisement from memory (FF 5); and 29
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playing the radio advertisement in the advertising slot using the vehicle radio 1
(FF 7). 2
4. As discussed earlier in connection with the patentability of 3
claims 14, 15 and 20, the teachings of Dimitriadis and Hite would have 4
provided one of ordinary skill in the art at the time of the invention reason to 5
modify Dimitriadis’ method to include the steps of monitoring the received 6
radio broadcast stream for marker data indicative of an advertising slot 7
within the radio broadcast stream and, in response to detecting the marker 8
data, accessing the radio advertisement from memory and playing the radio 9
advertisement in the advertising slot using the vehicle radio. 10
5. With respect to claim 2, Hite teaches receiving a radio 11
broadcast with in-line, that is, default, advertisements identified by marker 12
data, that is, unique CID codes. (FF 10). Hite further teaches substituting a 13
stored radio advertisement for the in-line advertisement. (FF 11). 14
6. With respect to claims 4-7 and 13, Hite teaches selecting 15
advertisements to be stored at the site by comparing CID codes transmitted 16
with the advertisement against predetermined CID codes stored at the site 17
where the advertising content is to be delivered. (FF 9). 18
7. With respect to claims 8-12, 18 and 19, Hite teaches selecting 19
certain ones of different radio advertisements using primary selection data 20
and storing the selected radio advertisements in the memory. Hite further 21
teaches selecting one of the stored radio advertisements using secondary 22
selection data, accessing that stored radio advertisement in response to 23
detecting the marker data and then playing the accessed radio advertisement 24
using the vehicle radio. These teachings were detailed earlier in connection 25
with the patentability of claims 43-45. 26
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DECISION 1
We reverse the rejections of claims 1-13, 16-19 and 21-42. We affirm 2
the rejection of claims 14, 15, 20 and 43-45 and designate the grounds of the 3
affirmance as new ground of rejections. We enter new grounds of rejection 4
against claims 1-13, 16-19 and 21-25. 5
This decision contains a new ground of rejection pursuant to 37 6
C.F.R. § 41.50(b). 37 C.F.R. § 41.50(b) also provides that Appellants, 7
WITHIN TWO MONTHS FROM THE DATE OF THE DECISION, must 8
exercise one of the following two options with respect to the new ground of 9
rejection to avoid termination of the appeal as to the rejected claims: 10
(1) Reopen prosecution. Submit an appropriate 11
amendment of the claims so rejected or new 12
evidence relating to the claims so rejected, or both, 13
and have the matter reconsidered by the examiner, 14
in which event the proceeding will be remanded to 15
the examiner. . . . 16
17
(2) Request rehearing. Request that the 18
proceeding be reheard under § 41.52 by the Board 19
upon the same record. . . . 20
No time period for taking any subsequent action in connection with 21
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R. 22
§ 1.136(a)(1)(iv) (2007). 23
24
AFFIRMED-IN-PART; 37 C.F.R. § 41.50(b) 25
26
27
28
29
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hh 1
2
GENERAL MOTORS CORPORATION 3
C/O REISING, ETHINGTON, BARNES, KISSELLE, P.C. 4
P.O. BOX 4390 5
TROY, MI 48099-4390 6