Ex Parte Schreer

Board of Patent Appeals and Interferences

Apr 26, 2012

10086089 (B.P.A.I. Apr. 26, 2012)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte SCOTT P. SCHREER
____________

Appeal 2009-013850
Application 10/086,089
Technology Center 2400
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Before ROBERT E. NAPPI, KARL D. EASTHOM, and
GREGORY J. GONSALVES, Administrative Patent Judges.

GONSALVES, Administrative Patent Judge.

DECISION ON APPEAL

Appeal 2009-013850
Application 10/086,089

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STATEMENT OF THE CASE
Appellant appeals under 35 U.S.C. § 134(a) from the final rejection of
claims 1-11. (App. Br. 2.) We have jurisdiction under 35 U.S.C. § 6(b).
We affirm.
The Invention
Exemplary Claim 1 follows:
1. A method of compensating at least one rights
holder responsible for content of a digital audio recording file
for the public performance of the content, the content being
included in a public broadcast, the method comprising the steps
of:
associating an identification with the digital audio
recording file to produce an identified digital audio recording
file;
generating an identification record correlating the
identification and the digital audio recording file;
broadcasting the identified digital audio recording file as
an audio signal in the public broadcast, the public broadcast
being made by one of a radio, television, cable, satellite
network and internet website, the public broadcast capable of
being remotely receivable simultaneously by a plurality of
audience members of the public capable of receiving the audio
signal being publicly broadcast;
receiving by a monitoring station the audio signal being
publicly broadcast;
feeding by said monitoring station the audio signal into
monitoring means for detecting the identification;
storing and correlating by said monitoring station the
identification and data solely related to the public broadcast and
unrelated to whether even any user constituting the audience
members of the public have received the broadcast, based on
the identification record as a batch file;
importing the batch file into a first database that catalogs
public performance, based upon the incidence of the public
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broadcast and unrelated to the number of actual audience users
of the audio signal, and
using the first database to compensate the at least one
rights holder.

The Examiner rejected claims 1-7 under 35 U.S.C. § 103(a) as being
unpatentable over Ginter (U.S. Patent No. 6,253,193B1 (filed Dec. 9, 1998))
in view of Wider (U.S. Patent No. 6,385,596 B1 (filed Feb. 1998)). (Ans. 4-
9.)
The Examiner rejected claims 8-11 under 35 U.S.C. § 103(a) as being
unpatentable over Ginter in view of Wiser and BMI (BMI: What is a Cue
Sheet (May 12, 1997), http://www.bmi.com/creators/detail/533132, (last
visited April 23, 2012)). (Ans. 9-14.)

ISSUE
Appellant’s responses to the Examiner’s positions present the
following issue:
Does Ginter disclose “receiving by a monitoring station the audio
signal being publicly broadcast,” as recited in independent claim 1, and as
similarly recited in independent claim 9?

ANALYSIS
We disagree with Appellant’s conclusion regarding the Examiner’s
rejection of each of the independent claims. We adopt as our own (1) the
findings and reasons set forth by the Examiner in the action from which this
appeal is taken and (2) the reasons set forth by the Examiner in the
Examiner’s Answer (Ans. 4-13) in response to arguments made in the
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Application 10/086,089

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Appellant’s Appeal Brief. We concur with the conclusion reached by the
Examiner. We highlight and address certain findings and arguments below.
Appellant asserts that Ginter does not suggest the step of “receiving
by a monitoring station the audio signal being publicly broadcast” as recited
in claim 1. (App. Br. 12.) In support of his assertion, Appellant argues that
the broadcast in Ginter is different than the public broadcast in the claimed
invention. (Id. at 12-13.) In particular, Appellant argues that “Ginter is not
interested in a public broadcast to multi-user’s [sic].” (Id. at 12 (emphasis
omitted), quoting Memon 1, ¶ 9.) But Ginter teaches a broadcast to multiple
users by disclosing that its system may be “used, for example, for multi-site
‘real-time’ interaction such as teleconferencing, interactive games, or on-line
bulletin boards . . . .” (Ginter, col. 14, ll. 24-26.) Indeed, Ginter explicitly
indicates that its system “uses a wide variety of different electronic
information delivery means: including, for example, digital networks, digital
broadcast . . . .” (Id. at col. 3, ll. 26-29 (emphasis added).) In addition, as
explained by the Examiner, owners and distributors in Ginter’s system can
monitor the broadcast of content. (Ans. 15, citing Ginter col. 3, ll. 21-33.)
The Examiner points out that “Applicant’s specification provides no
guidance as to how a public broadcast differs from a broadcast taught
throughout Ginter.” (Ans. 15.) Appellant fails to direct attention to such
guidance. Thus, we find that the Examiner, has given the claim its broadest
reasonable meaning consistent with the Specification, In re Morris, 127 F.3d
1048, 1054 (Fed. Cir. 1997), and properly relies on Ginter’s broadcast and
monitoring of content to meet the claimed limitation of “receiving by a
monitoring station the audio signal being publicly broadcast.” Accordingly,
we will sustain the Examiner’s rejection of claim 1 as well as claims 2-11
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because Appellant did not set forth any separate and different patentability
arguments for these additional claims. (See App. Br. 11-14.)

DECISION
We affirm the Examiner’s decision rejecting claims 1-11.
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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