Ex Parte Roberts et alDownload PDFPatent Trial and Appeal BoardAug 30, 201813343956 (P.T.A.B. Aug. 30, 2018) Copy Citation UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 13/343,956 01/05/2012 63649 7590 09/04/2018 DISNEY ENTERPRISES, INC. C/0 FARJAMI & FARJAMI LLP 26522 LA ALAMEDA A VENUE, SUITE 360 MISSION VIEJO, CA 92691 FIRST NAMED INVENTOR Vincent Roberts 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. 0260324 6789 EXAMINER ALCON, FERNANDO ART UNIT PAPER NUMBER 2425 NOTIFICATION DATE DELIVERY MODE 09/04/2018 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@farj ami. com farjamidocketing@yahoo.com ffarj ami @farj ami. com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte VINCENT ROBERTS, DANIEL SIEWERS, and MICHAEL M. MARTIN Appeal2018-001989 Application 13/343,956 1 Technology Center 2400 Before ERIC S. FRAHM, JASON J. CHUNG, and STEVEN M. AMUNDSON, Administrative Patent Judges. CHUNG, Administrative Patent Judge. DECISION ON APPEAL This is a decision on appeal under 35 U.S.C. § 134(a) of the Final Rejection of claims 1--4, 6, 8, 9, 11-15, 17, 19, 20, and22-24. 2 We have jurisdiction under 35 U.S.C. § 6(b). We affirm. INVENTION The invention is directed to cloud based content assembly. Spec. 3 :2- 4. Claim 1 is illustrative of the invention and is reproduced below with emphasis added to the disputed limitation: 1 According to Appellant, Disney Enterprises, Inc. is the real party in interest. App. Br. 2. 2 Claims 5, 7, 10, 16, 18, and 21 are cancelled. App. Br. 15, 17, 18. Appeal2018-001989 Application 13/343,956 1. A method for use by a cloud based content assembly system having a memory and a processor for assembling a plurality of customized linear channel streams from an assembly template, the method comprising: selecting, using the processor, the assembly template from the memory; identifying the plurality of customized linear channel streams to be assembled using the assembly template; generating virtualized assembly environments each corresponding to one of the plurality of customized linear channel streams; provzszoning each of the virtualized assembly environments with content assets having live content feeds for inclusion in each of the plurality of customized linear channel streams corresponding respectively to each of the virtualized assembly environments, wherein the content assets provisioned for inclusion in each of the plurality of customized linear channel streams vary based on needs of each of the plurality of customized linear channel streams; and assembling, using the assembly template, the plurality of customized linear channel streams each using a respective one of the virtualized assembly environments by merging each of a plurality of instantiations of the assembly template with the content assets having the live content feeds corresponding to each of the customized linear channel streams. REJECTION AT ISSUE Claims 1--4, 6, 8, 9, 11-15, 17, 19, 20, and 22-24 stand rejected under 35 U.S.C. § I03(a) as being unpatentable over the combination of Marcus (US 2007/0157275 Al; published July 5, 2007), Whitehead (US 2008/0141307 Al; published June 12, 2008), McGowan (US 2003/0018745 Al; published Jan. 23, 2003), and Pond (US 2010/0223392 Al; published Sept. 2, 2010). Final Act. 3-9. 2 Appeal2018-001989 Application 13/343,956 We have only considered those arguments that Appellants actually raised in the Briefs. Arguments 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. § 4I.37(c)(l)(iv). ANALYSIS Rejection of Claims 1-4, 6, 8, 9, 11-15, 17, 19, 20, and 22-24 under 35 U.S.C. § 103(a) Independent claim 1 recites "provisioning each of the virtualized assembly environments with content assets having live content feeds." Independent claim 12 recites similar features. The Examiner finds Whitehead teaches performing a content query to gather content appropriate to custom channel profile 160 such that the content is provisioned based on each individual custom channel 170, which the Examiner maps to the limitation "provisioning each of the virtualized assembly environments with content assets" recited in claim 1 ( and similarly recited in claim 12). Final Act. 5 (citing Whitehead ,r,r 60-67). In addition, the Examiner finds Pond teaches accessing live content when generating an output stream. Final Act. 7 ( citing Pond ,r,r 65-66). The Examiner concludes it would have been obvious to a person having ordinary skill in the art at the time of the invention to modify Marcus with Whitehead's performing a content query to gather content appropriate to custom channel profile 160 such that the content is provisioned based on each individual custom channel 170 for the benefit of creating personalized channels that would only present programs of interest for a particular customer. Final Act. 5---6. Furthermore, the Examiner concludes it would have been obvious to a person having ordinary skill in the art at the time of 3 Appeal2018-001989 Application 13/343,956 the invention to modify Marcus, Whitehead, and McGowan with Pond's accessing live content when generating an output stream for the benefit of providing a larger variety of programming thereby increasing viewer interest. Id. at 7. Appellants argue Whitehead fails to teach "provisioning each of the virtualized assembly environments with content assets having live content feeds" because Whitehead fails to teach "having live content feeds." App. Br. 8-9. Furthermore, Appellants argue Pond fails to teach "provisioning each of the virtualized assembly environments with content assets having live content feeds" because Pond's use of a playlist in an example can avoid needing live content. Id. at 9-10. Moreover, Appellants argue Marcus, Whitehead, McGowan, and Pond cannot be reasonably combined to teach "provisioning each of the virtualized assembly environments with content assets having live content feeds." Id. at 10-12. And Appellants argue Whitehead cannot be combined with Pond because Whitehead's query-based media content provisioning does not retrieve live content. Reply Br. 2--4. We disagree with Appellants. At the outset, Appellants' arguments filed in the Reply Brief (see Reply Br. 2--4) are untimely and waived because the Examiner did not change the theory in the Answer and the Examiner initially cited to paragraphs 60-67 of Whitehead and paragraphs 65 and 66 of Pond in the Final Rejection and later cited to paragraph 66 of Pond in the Answer while Appellants' proffered new arguments in the Reply Brief. See 37 C.F.R. § 41.41(b)(2); compare Final Act. 5, 7 (citing Whitehead ,r,r 60-67; Pond ,r,r 65---66), with Ans. 3 ( citing Pond ,r 66). 4 Appeal2018-001989 Application 13/343,956 Regarding Appellants' argument pertaining to Whitehead failing to teach "provisioning each of the virtualized assembly environments with content assets having live content feeds" because Whitehead fails to teach "having live content feeds" (App. Br. 8-9), we disagree with Appellants because one cannot show nonobviousness "by attacking references individually" where the rejections are based on combinations of references. In re Merck & Co., Inc., 800 F.2d 1091, 1097 (Fed. Cir. 1986) (citing In re Keller, 642 F.2d 413,425 (CCPA 1981)). In this case, the cited portions of Whitehead relied upon by the Examiner teach performing a content query to gather content appropriate to custom channel profile 160 such that the content is provisioned based on each individual custom channel 170, which teaches the limitation "provisioning each of the virtualized assembly environments with content assets" recited in claim 1 ( and similarly recited in claim 12). Final Act. 5 ( citing Whitehead ,r,r 60-67). As for Appellants' argument that Pond fails to teach "provisioning each of the virtualized assembly environments with content assets having live content feeds" because Pond's use of a playlist in an example can avoid needing live content (App. Br. at 9-10), we disagree because the Federal Circuit has held that "[a] reference may be said to teach away when a person of ordinary skill, upon reading the reference, would be discouraged from following the path set out in the reference, or would be led in a direction divergent from the path that was taken by the applicant." In re Kahn, 441 F.3d 977, 990 (Fed. Cir. 2006) (quoting In re Gurley, 27 F.3d 551, 553 (Fed. Cir.1994)). In this case, we conclude although Pond teaches using a playlist can avoid needing live content, Pond states this is an "example" (i.e., not rising to the level of discouraging from following the path set out in the 5 Appeal2018-001989 Application 13/343,956 reference as required by the Federal Circuit) and further states that live content may be accessed (see Pond ,r,r 65---66), which is acknowledged by Appellants. App. Br. 10 ("Appellant notes that Pond, while disclosing that live content may be accessed"). In addition, the Examiner cites portions of Pond to teach accessing live content when generating an output stream. Final Act. 7 ( citing Pond ,r,r 65---66). Regarding Appellants' argument that Marcus, Whitehead, McGowan, and Pond cannot be reasonably combined to teach "provisioning each of the virtualized assembly environments with content assets having live content feeds" (App. Br. 10-12), we disagree because the Examiner provides a sufficient rationale to combine. In particular, the Examiner concludes that it would have been obvious to a person having ordinary skill in the art at the time of the invention to modify Marcus with Whitehead's performing a content query to gather content appropriate to custom channel profile 160 such that the content is provisioned based on each individual custom channel 170 for the benefit of creating personalized channels that would only present programs of interest for a particular customer. Final Act. 5---6. Additionally, the Examiner concludes that it would have been obvious to a person having ordinary skill in the art at the time of the invention to modify Marcus, Whitehead, and McGowan with Pond's accessing live content when generating an output stream for the benefit of providing a larger variety of programming thereby increasing viewer interest. Id. at 7. We conclude the Examiner has set forth sufficient "articulated reasoning with some rational underpinning to support the legal conclusion of obviousness." KSR Int'! Co. v. Teleflex Inc., 550 U.S. 398,418 (2007) (quoting Kahn, 441 F.3d at 988); Final Act. 5-7. 6 Appeal2018-001989 Application 13/343,956 Appellants do not argue separately dependent claims 2--4, 6, 8, 9, 11, 13-15, 17, 19, 20, and 22-24 with particularity, but assert the rejections of those claims should be withdrawn for at least the same reasons as argued for independent claims 1 and 12. App. Br. 12. Accordingly, we sustain the Examiner's rejection of: (1) independent claims 1 and 12; and (2) dependent claims 2--4, 6, 8, 9, 11, 13-15, 17, 19, 20, and 22-24. DECISION We affirm the Examiner's decision rejecting claims 1--4, 6, 8, 9, 11- 15, 17, 19, 20, and 22-24 under 35 U.S.C. § 103(a). No time period for taking any subsequent action in connection with this appeal maybe extended under 37 C.F.R. § 1.136(a)(l)(iv). AFFIRMED 7 Copy with citationCopy as parenthetical citation