Ex Parte Rhoads et al

Patent Trial and Appeal Board

Mar 21, 2017

13634610 (P.T.A.B. Mar. 21, 2017)

United States Patent and Trademark Office
UNITED STATES DEPARTMENT OF COMMERCE
United States Patent and Trademark Office
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www.uspto.gov
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
13/634,610 09/13/2012 Steven Charles Rhoads PU100073 9338
24498 7590 03/23/2017
Robert D. Shedd, Patent Operations
THOMSON Licensing LLC
4 Research Way
3rd Floor
Princeton, NJ 08543
EXAMINER
SAINT CYR, JEAN D
ART UNIT PAPER NUMBER
2425
NOTIFICATION DATE DELIVERY MODE
03/23/2017 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):
uspto@technicolor.com
pat. verlangieri @ technicolor.com
russell. smith @ technicolor.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte STEVEN CHARLES RHOADS and
ROBERT ANDREW RHODES
Appeal 2016-003964
Application 13/634,610
Technology Center 2400
Before ST. JOHN COURTENAY III, LARRY J. HUME and
SCOTT B. HOWARD, Administrative Patent Judges.
COURTENAY, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
This is an appeal under 35 U.S.C. § 134(a) from the Examiner’s Final
Rejection of claims 1—30. We have jurisdiction under 35 U.S.C. § 6(b).
We affirm.
Invention
The disclosed and claimed invention on appeal “relates to digital
content systems and methods for delivering content to an end user, and more
particularly, to a system and method for providing program guide
information to an end user.” (Spec. 1,11. 9-11).
Appeal 2016-003964
Application 13/634,610
Representative Claim
1. A method for outputting channel guide information
comprising:
[LI] acquiring program content information from
an interactive program guide for a plurality of broadcast
channels;
[L2] generating a passive scrolling program guide
by:
outputting a first video image representing
program content covering a time span for a first portion
of the plurality of channels; and
outputting a second video image representing the
program content covering the time span for a second
portion of the plurality of channels after outputting the
first image for a time period, the second portion
including at least one channel from the plurality of
channels not included in the first portion.
(Contested limitations LI and L2 are bracketed and emphasized).
Rejections
A. Claims 1—3, 11—13, and 21—23 are rejected under pre-AIA 35 U.S.C.
§ 103(a) as being obvious over the combined teachings and
suggestions of Mountain (US 2010/0306804 Al; publ. Dec. 2, 2010)
and Young et al. (US 2005/0251828 Al; publ. Nov. 10, 2005)
(hereinafter “Young”).
B. Claims 4—6, 10, 14—16, 20, 24—26, and 30 are rejected under pre-AIA
35 U.S.C. § 103(a) as being obvious over the combined teachings and
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Application 13/634,610
suggestions of Mountain, Young, and Gordon et al. (US
2004/0133910 Al; publ. July 8, 2004) (hereinafter “Gordon”).
C. Claims 7—9, 17—19, and 27—29 are rejected under pre-AIA 35 U.S.C.
§ 103(a) as being obvious over the combined teachings and
suggestions of Mountain, Young, Gordon, and Robotham et al. (US
2007/0263007 Al; publ. Nov. 15, 2007) (hereinafter “Robotham”).
Grouping of Claims
Based on Appellants’ arguments, we decide the appeal of all claims
rejected under rejection A on the basis of representative independent
claim 1. See 37 C.F.R. § 41.37(c)(l)(iv). We address rejections B and C,
infra. To the extent Appellants have not advanced separate, substantive
arguments for particular claims and/or limitations, or other issues, such
arguments are considered waived. See 37 C.F.R. § 41.37(c)(l)(iv).
ANALYSIS
We have considered all of Appellants’ arguments and any evidence
presented. We disagree with Appellants’ arguments, and we adopt as our
own: (1) the findings and legal conclusions set forth by the Examiner in the
Final Office Action (3—5) from which this appeal is taken, and (2) the
findings, legal conclusions, and explanations set forth in the Answer in
response to Appellants’ arguments. (Ans. 3 4). However, we highlight and
address specific findings and arguments for emphasis in our analysis below.
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Appeal 2016-003964
Application 13/634,610
Rejection A of Independent Claim 1 under 35 U.S.C. § 103(a)
We decide the following issues presented in this appeal:
Issues: Under § 103, did the Examiner err by finding the cited
combination of Mountain and Young would have taught or suggested
contested limitations LI and L2, within the meaning of claim 1? 1
Contested limitation LI
Regarding contested limitation LI (“acquiring program content
information from an interactive program guide for a plurality of broadcast
channels''’) (emphasis added), Appellants contend, inter alia:
the Examiner’s position that Mountain’s obtaining of EPG
[(Electronic Program Guide)] information is “acquiring
program content information from an interactive program guide
for a plurality of broadcast channels” as recited in independent
claim 1 is in error because Mountain’s EPG information is
information that is used to generate an interactive programming
guide, not an interactive programming guide from which
program content information is acquired. As such, the
Appellant respectfully submits that the rejection is clearly in
error.
(Br. 7).
Regarding limitation LI, the Examiner relies (Final Act. 3 4) on
Mountain (Fig. 1, media device 102, 15, 36). We note Mountain’s media
device 102 includes current EPG information 126, as depicted stored in
memory 112. (Fig. 1). Media device 102 also includes presentation device
1 We give the contested claim limitations the broadest reasonable
interpretation consistent with the Specification. See In re Morris, 111 F.3d
1048, 1054 (Fed. Cir. 1997); cf Spec. 15,11. 12—15 (“It is therefore to be
understood that changes may be made in the particular embodiments of the
disclosure disclosed which are within the scope of the disclosure as outlined
by the appended claims.”).
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Application 13/634,610
interface 118 that provides EPG 142 to media presentation device 146. (Id.).
Mountain (| 36) teaches, in pertinent part:
In some embodiments, the entire EPG information resides in
the current EPG information 156 of the remote EPG content
system 106 and may be populated on a dynamic basis. Much
like the entire carousel of EPG information provided over the
EPG data channel, the media device 102 receives all of its EPG
information from the current EPG information 156 of the
remote EPG content system 106.
Emphases omitted.
We find Appellants’ contention (Br. 7) unpersuasive that Mountain’s
EPG 126 (Fig. 1) information is not an interactive programming guide from
which program content information is acquired, because method claim 1
does not specify who or what performs any step or act of interacting with
the program guide recited in limitation LI: “acquiring program content
information from an interactive program guide for a plurality of broadcast
channels.” (Claim 1) (emphasis added). Nor do Appellants define
“interactive program guide” in the claim, or in the Specification. Therefore,
on this record, we are not persuaded the Examiner’s reading is overly broad,
unreasonable, or inconsistent with Appellants’ Specification.2 (Final
Act. 3—4). Moreover, we find Mountain, in describing Figure 1, describes an
interaction with a viewer to control presentation of the information
shown on EPG 142:
[MJedia device 102 is configured to receive instructions from a
viewer via a suitable control device, such as, but not limited to,
the exemplary remote control 136. The remote control 136
2 Because “applicants may amend claims to narrow their scope, a broad
construction during prosecution creates no unfairness to the applicant or
patentee.” In re ICON Health and Fitness, Inc., 496 F.3d 1374, 1379 (Fed.
Cir. 2007) (citation omitted).
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Application 13/634,610
includes one or more controllers 138. The viewer, by actuating
one or more of the controllers 138, causes the remote control
136 to generate and transmit instructions, via a wireless
signal 140, to the media device 102 to control presentation of
information shown on an EPG 142.
(Mountain 123, Fig. 1) (emphases added & omitted).
Contested limitation L2
Regarding contested limitation L2 (“generating a passive scrolling
program guide . . .”), Appellants contend “[t]he ‘Examiner’s position that
Young’s automatic scrolling guide sessions are ‘generating a passive
scrolling program guide’ as recited in independent claim 1 is in error
because Young’s automatic scrolling guide sessions are interactive.” (Id.).
In support, Appellants further contend, inter alia:
The cited portions of Young (paragraphs 0060, 0065, 0163,
0183, and 1092) disclose scrolling guide sessions. Young does
state that the scrolling guide sessions can be set to manually or
automatically scroll. See Young; paragraph 00163. However,
Young states that one or more of the setting criteria for the
scrolling guide sessions, such as whether or not the scrolling is
manual or automatic, can be changed without terminating the
session. See Young; paragraph 00163. As the scrolling guide
sessions of Young can be changed from automatic scrolling to
manual scrolling, the scrolling guide sessions are not a “passive
scrolling program guide” as is required by independent claim 1.
To the contrary, such scrolling guide sessions are interactive.
An interactive guide is not non-interactive if it is still responds
to input simply because it is capable of some operation
independent of input.
(Br. 7—8) (emphases omitted).
The Examiner disagrees, and finds:
Young . . . [teaches] a system that is capable of scrolling [a]
non-interactive guide based on time and independently from
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Application 13/634,610
user inputs and further disclose[s “]This may include the time-
period over which the listings are scrolled, whether the
scrolling is manual or automatic, the channel of the last listing,
whether sorting by theme has been setup, whether sorting by
favorite channels has been setup[”],0163; 0060;....
Automatic scrolling can be at a fixed number of listings per
time period, or can simply be from the tab being pushed
forward by program broadcasts ending,0165;0183;0192[.]
(Ans. 3—4).
We do not find Appellants’ contention persuasive that Young’s
scrolling guide sessions are not a “passive scrolling program guide”
(claim 1) because Young’s scrolling guide sessions “can be changed from
automatic scrolling to manual scrolling.” (Br. 8). We note Appellants’
contentions regarding automatic scrolling and manual scrolling (and
“interactive” and “non-interactive”) are not commensurate with the language
of limitation L2. (Br. 7—8; claim 1).
We conclude the method of generating “a passive scrolling program
guide” is defined by the two “outputting” steps of claim 1. We note claim 1
does not specify who or what performs the following steps or acts of
limitation L2 — “generating a passive scrolling program guide by:”
outputting a first video image representing program
content covering a time span for a first portion of the plurality
of channels; and
outputting a second video image representing the
program content covering the time span for a second portion of
the plurality of channels after outputting the first image for a
time period, the second portion including at least one channel
from the plurality of channels not included in the first portion.
(Claim 1) (emphasis added).
We find Young (| 163) teaches or suggests contested limitation L2, as
claimed: e.g., “[djuring a session, specific setup criteria for the background
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Application 13/634,610
is persistent and stored in electronic memory. This may include the time-
period over which the listings are scrolled, whether the scrolling is manual
or automatic, the channel of the last listing . . . See also Young 165,
183, 192). (See Ans. 3—4).
We additionally note “the question under 35 [U.S.C.] § 103 is not
merely what the references expressly teach but what they would have
suggested to one of ordinary skill in the art at the time the invention was
made.” Merck & Co., Inc. v. Biocraft Labs., Inc., 874 F.2d 804, 807—08
(Fed. Cir. 1989), cert, denied, 493 U.S. 975 (1989); see also Manual of
Patent Examining Procedure § 2123 (9th Ed., Rev. 9, Nov. 2015).
Moreover, on this record, we find the Examiner’s proffered combination of
the respective teachings of Mountain and Young would have merely yielded
predictable results, and, thus, would have been obvious to an artisan
possessing an ordinary level of skill at the time of Appellants’ invention.
See KSR Inti Co. v. Teleflex Inc., 550 U.S. 398, 416 (2007) (“The
combination of familiar elements according to known methods is likely to be
obvious when it does no more than yield predictable results”).
Nor do Appellants further rebut the Examiner’s findings and
responsive arguments (Ans. 3 4) by filing a Reply Brief. Arguments not
made are waived. See 37 C.F.R. § 41.37(c)(l)(iv).
For at least the aforementioned reasons, and based upon a
preponderance of the evidence, Appellants have not persuaded us the
Examiner erred. Accordingly, we sustain rejection A of representative
independent claim 1, and rejection A of the associated grouped claims,
which fall with claim 1. See Grouping of Claims, supra.
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Rejections B and C of the Remaining Dependent Claims
Because Appellants have not advanced separate and substantive
arguments regarding rejections B and C of the remaining dependent claims,
such arguments are waived. See 37 C.F.R. § 41.37(c)(l)(iv). (See Br. 10).
Conclusion
For at least the aforementioned reasons, we find a preponderance of
the evidence supports the Examiner’s underlying factual findings and
ultimate legal conclusion of obviousness regarding all contested claims on
appeal.
DECISION
We affirm the Examiner’s rejections of claims 1—30 under 35 U.S.C.
§ 103(a).
No time for taking any action connected with this appeal may be
extended under 37 C.F.R. § 1.136(a)(1). See 37 C.F.R. § 41.50(f).
AFFIRMED
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