Ex Parte Rovira

Board of Patent Appeals and Interferences

Sep 29, 2010

09847625 (B.P.A.I. Sep. 29, 2010)

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.
09/847,625 05/02/2001 Luis A. Rovira 60374.0124US01/A-6671 5607
62658 7590 09/30/2010
MERCHANT & GOULD
SCIENTIFIC ATLANTA, A CISCO COMPANY
P.O. BOX 2903
MINNEAPOLIS, MN 55402-0903
EXAMINER
LONSBERRY, HUNTER B
ART UNIT PAPER NUMBER
2421
MAIL DATE DELIVERY MODE
09/30/2010 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 BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte LUIS A. ROVIRA
_____________

Appeal 2009-006470
Application 09/847,625
Technology Center 2400
____________

Before ROBERT E. NAPPI, KENNETH W. HAIRSTON, and
MAHSHID D. SAADAT, Administrative Patent Judges.

HAIRSTON, Administrative Patent Judge.

DECISION ON APPEAL1

1 The two-month time period for filing an appeal or commencing a civil
action, as recited in 37 C.F.R. § 1.304, or for filing a request for rehearing,
as recited in 37 C.F.R. § 41.52, begins to run from the “MAIL DATE”
(paper delivery mode) or the “NOTIFICATION DATE” (electronic delivery
mode) shown on the PTOL-90A cover letter attached to this decision.
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STATEMENT OF THE CASE
Appellant appeals under 35 U.S.C. § 134(a) from the Examiner’s final
rejection of claims 1 to 25 and 27 to 36. Claim 26 has been canceled. We
have jurisdiction under 35 U.S.C. § 6(b).
We affirm.
Appellant’s invention is concerned with television and broadcasting
systems, and specifically to video-on-demand (VOD) systems employing
set-top-boxes and electronic/interactive program guides for use in such
systems (Abs.; Spec. 1:1-15; Figs. 3, 4, and 5).
Claim 1, reproduced below, is illustrative of the subject matter on
appeal:

1. A method for providing media services via an interactive media
services client device coupled to a programmable media services server
device, said method comprising:

providing a user with an interactive program guide (IPG), the IPG
including a television program schedule with a plurality of scheduled
programs, the plurality of scheduled programs including at least one
currently scheduled television program, said currently scheduled television
program being scheduled for broadcast to a plurality of users at a
predetermined current time, and at least one scheduled future television
program, said scheduled future television program being otherwise available
only via a scheduled broadcast to a plurality of users at a predetermined later
time, said IPG being configured to provide a user option to highlight at least
one scheduled program in the television program schedule;

in response to a user highlighting said scheduled future television
program, providing said user with an option to view the highlighted
scheduled future television program at a user-defined time;

receiving user input requesting said scheduled future television
program for display at a user-defined time, wherein said user-defined time is
prior to said later time, and wherein said user input requesting said
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scheduled future television program for display at a user- defined time
includes a request for beginning a display of the scheduled future television
program at a time when said scheduled future television program is not
scheduled to begin broadcasting to a plurality of users; and

providing said user with said scheduled future television program at
said user-defined time.

The Examiner relies upon the following as evidence of
unpatentability:
Kostreski US 5,534,912 July 9, 1996
Ganek US 5,682,597 Oct. 28, 1997
Girard US 5,751,282 May 12, 1998
Matthews, III US 5,815,145 Sep. 29, 1998
Imajima US 6,211,901 B1 Apr. 3, 2001
LaJoie US 6,772,433 B1 Aug. 3, 2004
(filed Nov. 3, 1998)
Ellis WO 99/60790 Nov. 25, 1999
Humphrey, The Stranger.com, I Love Television, VOL. 10
NO. 21, pp. 1-3 (Feb. 8-14, 2001) (found at
http://thestranger.com/2001-02-08/love_tv.html) (hereinafter,
“thestranger.com”)

The following obviousness rejections are before us for review:
(i) Claims 1, 3, 4, 7, 8, 10 to 12, 18 to 21, 25, 28, 29, 35, and 36 stand
rejected under 35 U.S.C. § 103(a) as unpatentable over Ellis,
thestranger.com, LaJoie, and Imajima.
(ii) Claims 2 and 22 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Ellis, thestranger.com, LaJoie, and Imajima, and further in
view of Kostreski.
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(iii) Claims 5, 6, 23, and 24 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Ellis, thestranger.com, LaJoie, and Imajima, and further in
view of Matthews, III.2
(iv) Claims 9, 15 to 17, 27, and 32 to 34 stand rejected under 35
U.S.C. § 103(a) as unpatentable over Ellis, thestranger.com, LaJoie, and
Imajima, and further in view of Girard.
(v) Claims 13, 14, 30, and 31 stand rejected under 35 U.S.C. § 103(a)
as unpatentable over Ellis, thestranger.com, LaJoie, and Imajima, and further
in view of Ganek.3
With regard to independent claims 1, 19, and 36, Appellant contends
inter alia (App. Br. 5-19; Reply Br. 2-15) that the combination of Ellis,
thestranger.com, LaJoie, and Imajima fails to teach or suggest IPG including
a currently scheduled television program scheduled for broadcast to plural
users at a predetermined current time, and a future scheduled television
program scheduled to be broadcast to plural users at a predetermined later
time, and allowing a user to select and view the future scheduled television
program at a user-defined time which is prior to the predetermined later time
(see App. Br. 9, 12-13, and 16).
Appellant argues (Reply Br. 3-4) that Ellis, and specifically Figures
6A through 8 therein, fails to disclose, teach, or suggest an IPG that includes
current and future programs, where the currently scheduled television

2 The Examiner inadvertently failed to include Matthews, III in the
“Evidence Relied Upon” section of the Answer (see Ans. 2-3).
3 The Examiner inadvertently refers to the Ganek reference as “Gordon” in
the Answer (see Ans. pp. 3, 13, and 14). Based on the USPN 5,682,597
listing Ganek and not Gordon as the first inventor, we consider this to be
harmless error for purposes of this appeal.
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programs are scheduled for broadcast to plural users at a predetermined
current time, and the future scheduled television programs are otherwise
available only via a scheduled broadcast to a plurality of users at a later time.

ISSUES
Based on Appellant’s arguments, the issues are:
Do the combinations of the references used in the Examiner’s
rejections disclose or suggest an IPG including a currently scheduled
television program scheduled for broadcast to plural users at a
predetermined current time, and a future scheduled television program?
Do the combinations of the references used in the Examiner’s
rejections disclose or suggest providing NVOD and FVOD programs (i.e.,
future scheduled television programs broadcast to plural users) to a user to
allow for immediate viewing by the user (i.e., at a user-defined time)?

FINDINGS OF FACT
1. Ellis describes an IPG including listings for current scheduled
television programs, future scheduled television programs, and
VOD programs (p. 13, ll. 7-32). Ellis also describes a set-top-box
(STB) for implementing the IPG (p. 15, ll. 17-27 and p. 16, ll. 10-
22).
2. LaJoie describes an IPG 338 and set-top-box 6 (Figs.1 and 3) for
highlighting and selecting scheduled programs for display at a
user’s location, including NVOD programming, IPPV
programming, and VOD programming (Abs.; Figs. 10-18 and 25-
32; col. 23, l. 58 to col. 25, l. 29; col. 32, l. 65 to col. 33, l. 51).
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3. Imajima describes allowing a user to select a program that is to be
broadcast at a regularly scheduled future time via a near-video-on-
demand (NVOD) service (Fig. 5, col. 1, ll. 35-40), and to request
the program to be viewed immediately at a user-defined time using
a full-video-on-demand (FVOD) service (Fig. 7, col. 1, ll. 35-45).
Imajima provides allowing a user to view FVOD programs
immediately without having to wait for the next NVOD program
(col. 1, ll. 6-51).

ANALYSIS
The Examiner has established a factual basis, as well as provided
articulated reasoning that possesses a rational underpinning, to support the
legal conclusion of obviousness (Ans. 3-19). In re Kahn, 441 F.3d 977, 988
(Fed. Cir. 2006); In re Fine, 837 F.2d 1071, 1073 (Fed. Cir. 1988). Because
Appellant has not persuaded us of error in the Examiner’s rejections, and for
the reasons that follow, we will sustain all of the obviousness rejections
before us on appeal. See Kahn, 441 F.3d at 985-86.
Appellant has not persuasively rebutted the Examiner’s conclusion
that it would have been obvious to combine the teachings of Ellis,
thestranger.com, LaJoie, and Imajima. We agree with the Examiner (Ans. 3,
15-16) that Ellis discloses an IPG that displays television program listings as
well as VOD listings including data for current programs, future programs,
and VOD programs (see Ellis at Fig. 2; p. 13, ll. 7-32; FF 1). As indicated
supra, Appellant’s main line of argument (Reply Br. 3-4) is that Ellis, and
specifically Figures 6A through 8 therein, fails to disclose, teach, or suggest
an IPG that includes current and future programs, where the currently
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scheduled television programs are scheduled for broadcast to plural users at
a predetermined current time, and the future scheduled television programs
are otherwise available only via a scheduled broadcast to a plurality of users
at a later time. However, we agree with the Examiner that Ellis (see page 13
therein) discloses and suggests an IPG including current and future
programs, as well as VOD programs (FF 1). Thus, Appellant’s arguments
directed to the first issue have not persuaded us of error in the Examiner’s
rejection.
We also agree with the Examiner (Ans. 5 and 17-18) that LaJoie
discloses an IPG system in which a user may highlight a scheduled pay-per-
view (PV) or impulse-pay-per-view (IPPV) program to display information
about the highlighted program and allow the user to proceed with an option
step (col. 24, ll. 1-28; col. 24, l. 48 to col. 25, l. 28; Figs. 13, 18, and 25 -32;
FF 2). Lastly, we agree with the Examiner (Ans. 6 and 18-19) that Imajima
discloses allowing a user to select a program that is to be broadcast at a
regularly scheduled future time via a near-video-on-demand (NVOD)
service (Fig. 5, col. 1, ll. 35-40), or to request the program to be viewed
immediately at a user-defined time using a full-video-on-demand (FVOD)
service (Fig. 7, col. 1, ll. 35-45; FF 3), thus allowing a user to view FVOD
programs immediately without having to wait for the next NVOD program
(col. 1, ll. 6-51; FF 3).
Appellant has not convinced us that the Examiner erred in finding that
Imajima discloses that “NVOD programs are broadcasted on a regularly
scheduled broadcast, and by the user electing to start the program
immediately without waiting for the next NVOD broadcast, the user has sent
input requesting a program at a user defined time (current time) which is not
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a scheduled future television time” (see Ans. 19). One of ordinary skill in
the art would understand that an NVOD program is broadcast to plural users
at an established time in the future since NVOD technology is a time shift
service that broadcasts a show on plural channels at predetermined time
intervals (Imajima at col. 1, ll. 45-51). Thus Appellant’s arguments directed
to the second issue have not persuaded us of error in the Examiner’s
rejection.
For all of the above reasons, Appellant’s arguments have not
persuaded us of error in the Examiner’s rejections of claims 1, 19, and 36
under 35 U.S.C. § 103(a) as being unpatentable over the combination of
Ellis, thestranger.com, LaJoie, and Imajima. In view of the foregoing, we
will sustain the Examiner’s rejections of independents claim 1, 19, and 36.
Appellant does not separately argue with particularity the of
dependent claims 3, 4, 7, 8, 10 to 12, 18, 20, 21, 25, 28, 29, and 35 which
depend respectively from claims 1 and 19, apart from merely asserting that
these claims recite further features that are not taught or suggested by cited
prior art (App. Br. 19). Such conclusory assertions without supporting
explanation or analysis particularly pointing out errors in the Examiner’s
reasoning fall well short of persuasively rebutting the Examiner's prima facie
case of obviousness. In re Oetiker, 977 F.2d 1443, 1445 (Fed. Cir. 1992).
We therefore sustain the Examiner’s rejection of claims 3, 4, 7, 8, 10 to 12,
18, 20, 21, 25, 28, 29, and 35 for the reasons indicated previously with
regard to claims 1, 19, and 36.
Finally, with respect to the obviousness rejections (see rejections (ii)-
(v) listed supra) of dependent claims 2, 5, 6, 9, 13 to 17, 22 to 24, 27, and 30
to 34 which depend from respective ones of independent claims 1 and 19,
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Appellant has not disputed the merits of the obviousness rejections of these
claims at all. Accordingly, we will sustain the obviousness rejections of
claims 2, 5, 6, 9, 13 to 17, 22 to 24, 27, and 30 to 34 for similar reasons
provided supra with regard to the rejection of claims 1, 19, and 36 and
because Appellant has failed to rebut the Examiner’s prima facie case of
obviousness. See 37 C.F.R. § 41.37(c)(1)(vii) (requiring a statement in the
briefs as to each ground of rejection presented by Appellant for review); 37
C.F.R. § 41.37(c)(1)(vii) (stating that arguments not presented in the briefs
by Appellants will be refused consideration).

CONCLUSIONS OF LAW
The combinations of the references used in the Examiner’s rejections
disclose or suggest an IPG including a currently scheduled television
program scheduled for broadcast to plural users at a predetermined current
time, and a future scheduled television program.
The combinations of the references used in the Examiner’s rejections
disclose providing NVOD and FVOD programs (i.e., future scheduled
television programs broadcast to plural users) to a user to allow for
immediate viewing by the user (i.e., at a user-defined time).
Ellis, thestranger.com, LaJoie, and Imajima taken in combination
disclose or suggest the recited invention as set forth in claims 1, 19, and 36.

ORDER
We affirm the Examiner’s obviousness rejections of claims 1 to 25
and 27 to 36 under § 103(a).
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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)(v).

AFFIRMED

KIS

MERCHANT & GOULD
SCIENTIFIC ATLANTA, A CISCO COMPANY
P.O. BOX 2903
MINNEAPOLIS, MN 55402-0903