Ex Parte Rashkovskiy et al

Patent Trial and Appeal Board

Sep 24, 2012

10848931 (P.T.A.B. Sep. 24, 2012)

UNITED STATES PATENT AND TRADEMARK OFFICE
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
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
10/848,931 05/19/2004 Oleg B. Rashkovskiy BKA.0002C1US 5716
21906 7590 09/24/2012
TROP, PRUNER & HU, P.C.
1616 S. VOSS ROAD, SUITE 750
HOUSTON, TX 77057-2631
EXAMINER
SALTARELLI, DOMINIC D
ART UNIT PAPER NUMBER
2421
MAIL DATE DELIVERY MODE
09/24/2012 PAPER
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.
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________________

Ex parte OLEG B. RASHKOVSKIY and NOAM A. SHENDAR
___________________

Appeal 2010-0041061
Application 10/848,931
Technology Center 2400
____________________

Before JEAN R. HOMERE, THU A. DANG, and
ANDREW J. DILLON, Administrative Patent Judges.

HOMERE, Administrative Patent Judge.

DECISION ON APPEAL

1 The real party in interest is BlackArrow, Inc. (App. Br. 3.) This appeal is
related to a prior appeal 2010-5055 (09/561,443) previously decided by
another panel on February 13, 2012.
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I. STATEMENT OF THE CASE
Appellants appeal under 35 U.S.C. § 134(a) from the Examiner’s final
rejection of claims 1-4, 6-19, and 31-47. Claims 5 and 20-30 have been
canceled. (App. Br. 5.) We have jurisdiction under 35 U.S.C. § 6(b).
We affirm.
Appellants’ Invention
Appellants invented a broadband distribution system having a shell
interface (22) that interrupts the presentation of a cached content, analyzes it
to thereby determine an appropriate location therein to insert a pre-cached
advertisement at a favorable time. (Fig. 1, Spec. 7, l. 4- Spec. 8, l. 10.)
Illustrative Claim
Independent claim 1 further illustrates the invention. It reads as
follows:
1. A method comprising:

receiving content and an advertisement;

storing said content, including an interruptible content portion,
and an advertisement in a cache coupled to said receiver;

analyzing the content to identify a location to insert the
advertisement within the content and, based on said analysis,
finding a place to insert said advertisement in said portion while
said portion is still stored in said cache;

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inserting said advertisement in said portion; and

outputting for display said portion with said inserted
advertisement.

Prior Art Relied Upon
Zigmond US 6,698,020 B1 Feb. 24, 2004
Arsenault US 6,971,119 B1 Nov. 29, 2005
Armstrong US 7,017,173 B1 Mar. 21, 2006

Rejections on Appeal
The Examiner rejects the claims on appeal as follows:
1. Claims 1-3, 6, 7, 10-13, 15, 16, 19, 31, 32, 37, 38, 40, 42, 43,
and 46 stand rejected under 35 U.S.C. § 102(e) as being anticipated by
Arsenault.
2. Claims 4, 8, 9, 14, 17, 18, 33-36, 39, and 41 stand rejected
under 35 U.S.C. § 103 (a) as being unpatentable over the combination of
Arsenault and Zigmond.
3. Claims 44, 45, and 47 stand rejected under 35 U.S.C. § 103 (a)
as being unpatentable over the combination of Arsenault and Armstrong.

ANALYSIS
We consider Appellants’ arguments seriatim as they are presented in
the principal Brief, pages 10-11 and the Reply Brief 1-2.

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Representative Claim 1
Dispositive Issue: Have Appellants shown that the Examiner erred in
finding that Arsenault describes analyzing an interruptible content portion in
a cache to determine where to insert an advertisement in the portion while it
is still stored in the cache, as recited in independent claim 1?
Appellants argue that Arsenault does not describe analyzing the
content in a cache to determine where to insert an advertisement therein, as
recited in independent claim 1. According to Appellants, while Arsenault
discloses ordering packets of content into discrete units to thereby insert
advertisements between the discrete units, the content are not analyzed to
determine locations therein to insert the advertisements. (App. Br. 10-11).
Further, Appellants argue that Arsenault’s disclosure of periodically
inserting the advertisements between movie segments of equal length
confirms their allegation that the content of the movie segments are not
analyzed before advertisements are inserted therebetween. (Reply Br. 1-2.)
In response, the Examiner finds that because the segments of a movie
as a whole represent contents thereof, and the organization of the segments
in an appropriate order requires an analysis thereof, Arsenault’s disclosure of
inserting advertisements between movie segments in a cache describes the
disputed limitations, as broadly claimed. (Ans. 13-15.)
On the record before us we find no error in the Examiner’s rejection
of independent claim 1, which recites, inter alia, analyzing the content
portion in a cache to identify a location therein to insert an advertisement.
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We note at the outset that, as set forth above, both the Examiner and
Appellants agree that Arsenault discloses inserting an advertisement
between the content/movie segments. However, Appellants do not agree
with the Examiner that the cited disclosure describes the disputed
limitations. We agree with the Examiner. In particular, we find that
Arsenault discloses breaking a movie content into a plurality of segments
interspersed by an advertisement segment in such a way to playback the
advertisement at the end of each movie segment. Depending on the content
of the advertisement, the movie segments are ordered accordingly. (Col. 17,
l. 17- col. 18, l. 19). While Arsenault’s disclosure appears to be silent on the
relative lengths of each of the movie segments, Fig. 8 appears to depict a
plurality of segments of different lengths, e.g, in playback option 164,
segment 170A<170B=170C< 170D, in playback option 166, segment 170A
=170B < 170C, in playback option 168, segment 170D>170A=170C
>170B). Therefore, Appellants’ argument that the movie segments are of
equal lengths is not supported by the evidence before us nor is it supported
by the controlling case law.2 Notwithstanding Arsenault’s silence on the
assignment of movie segment lengths, we find that Arsenault’s disclosure of

2 See In re Wright, 569 F.2d 1124, 1127 (CCPA 1977) (“Absent any written
description in the specification of quantitative values, arguments based on
measurement of a drawing are of little value” (citation omitted)). See also In
re Nash, 230 F.2d 428, 431 (CCPA 1956) (“[I]t is well settled that the
drawings of patent applications are not necessarily scale or working
drawings. . . .”); In re Olson, 212 F.2d 590, 592 (CCPA 1954) (“Ordinarily
drawings which accompany an application for a patent are merely
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the CPU organizing the movie segments in appropriate order based on the
intended use of the advertising segments (col. 18, ll. 1-5) describes that the
movie segments are subject to some kind of analysis depending on the
intended use of the advertising. Furthermore, we find that common sense
dictates that the movie content has to be analyzed before it can be optimally
broken up into the segments, and subsequently interspersed by the
advertisements. That is, randomly or periodically breaking up the movie
content without a prior analysis could compromise the effectiveness of the
movie playback (e.g. dialogs could be inadvertently broken in mid-sentence,
etc.) We are therefore satisfied that the cited disclosures of Arsenault
adequately describe the disputed limitations. It follows that Appellants have
not shown the Examiner erred in finding that Arsenault anticipates claim 1.
Because Appellants argue the patentability of claims 1-4, 6-19, and
31-47 as a single group, claims 2-4, 6-19, and 31-47 fall for the same
reasons set forth above in our discussion of claim 1. See 37 C.F.R.
§ 41.37(c)(1)(vii).

illustrative of the principles embodied in the alleged invention claimed
therein and do not define the precise proportions of elements relied upon to
endow the claims with patentability” (citation omitted)). See also MPEP
§ 2125.
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IV. DECISION
We affirm the Examiner’s rejections of claims 1-4, 6-19, and 31-47.
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).

AFFIRMED

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