11774624 (P.T.A.B. Feb. 20, 2014)

Ex Parte Schrewelius

Patent Trial and Appeal BoardFeb 20, 2014

11774624 (P.T.A.B. Feb. 20, 2014)

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. 11/774,624 07/09/2007 Claes Schrewelius PS07 0534US1 3612 58342 7590 02/20/2014 WARREN A. SKLAR (SOER) RENNER, OTTO, BOISSELLE & SKLAR, LLP 1621 EUCLID AVENUE 19TH FLOOR CLEVELAND, OH 44115 EXAMINER VIG, NARESH ART UNIT PAPER NUMBER 3688 MAIL DATE DELIVERY MODE 02/20/2014 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 APPEALS BOARD ____________ Ex parte CLAES SCHREWELIUS ____________ Appeal 2012-000011 Application 11/774,624 Technology Center 3600 ____________ Before, ANTON W. FETTING, JOSEPH A. FISCHETTI, and BIBHU R. MOHANTY, Administrative Patent Judges. FISCHETTI, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Appellant seeks our review under 35 U.S.C. § 134 of the Examiner’s final rejection of claims 1-20. We have jurisdiction under 35 U.S.C. § 6(b). (2002) Appeal 2012-000011 Application 11/774,624 2 SUMMARY OF DECISION We AFFIRM. THE INVENTION Appellant claims a system and method for providing subscriber preferred media. Spec. 1, ll. 6-7. Claim 1, reproduced below, is representative of the subject matter on appeal. 1. A system for establishing user preferences for a user of an electronic device in conjunction with a media subscription server comprising: a media player within the electronic device configured to receive a plurality of media sample portions; a timer for calculating for each media sample portion a sample time corresponding to the time that the user plays each media sample portion; and a controller configured to calculate whether each sample time exceeds a benchmark time, wherein the controller sets a user preference for the genre of each media sample portion for which the sample time exceeds the benchmark time. THE REJECTION The Examiner relies upon the following as evidence of unpatentability: Plastina US 7,256,341 B2 Aug. 14, 2007 Logan US 7,640,560 B2 Dec. 29, 2009 Appeal 2012-000011 Application 11/774,624 3 The following rejections are before us for review: The Examiner rejected claims 1-20 as being unpatentable under 35 U.S.C. § 112, second paragraph, for being vague and unclear to determine the scope of the subject matter which Appellant regards as the invention. Ans. 5 The Examiner rejected claims 1-20 under 35 U.S.C. § 103(a) as being obvious over Plastina and Logan. Ans. 6. FINDINGS OF FACT 1. We adopt the Examiner’s findings as set forth on pages 6-11 of the Answer. 2. Logan discloses: In one embodiment, the operator enters a sequence that denotes the beginning of the portion of the compressed broadcast programming signal that the user may want to delete. The editing unit 42 detects the input sequence and reads a time signal from the time stamp 48 and stores in the editing unit 42 memory a time signal representative of the start-time of the delete-able portion of the programming signal. At a subsequent time, the operator enters a stop sequence that is detected by the editing unit 42. Similarly, the editing unit 42 reads the time stamp generated by the time stamp 48 and stores a stop signal in the editing unit memory. The editing unit 42 then generates, as a function of the start signal and stop signal, a marking signal that represents as a function of the time stamps, that portion of the broadcast programming signal that can be deleted. Col. 10, ll. 27-42. Appeal 2012-000011 Application 11/774,624 4 3. Logan further discloses: In another embodiment, the viewing control program also notes user priority levels and what portions of the broadcast programming signal are generally deleted or skipped by the viewer and stores these preferences in database memory 60 as priority data signals. The processor 34 then retrieves the data signals compiled by the viewing control program and stored in the database memory 60 to automatically generate a proprietary program signal from later received broadcast programming signals. Col. 16, ll. 24-32. ANALYSIS Rejection under 35 U.S.C. 112, Second Paragraph We will not sustain the rejection under 35 U.S.C. 112, Second Paragraph for the reasons set forth by Appellant in the (Appeal Brief on pages 6-7. We further note that the Examiner’s objection under 35 U.S.C. 112, Second Paragraph, goes to scope of the claims and not definiteness. Thus, the Examiner’s concerns are a matter of claim breadth, not indefiniteness. “Breadth is not indefiniteness.” In re Gardner, 427 F.2d 786, 788 (1970). 35 U.S.C. § 103(a) rejection Initially, we note that the Appellant argues claims 1-20 together as a group. Correspondingly, we select representative claim 1 to decide the appeal of these claims, remaining claims 2-20 stand or fall with claim 1. Appellant argues that: Appeal 2012-000011 Application 11/774,624 5 Time stamps are not employed to calculate a sample time constituting a time period for which a media sample is played. Relatedly, there is no disclosure or suggestion anywhere in Logan that a sample time is compared to any benchmark time as claimed. (Appeal Br. 9.) We disagree with Appellant. We find that Logan discloses that the viewer creates a sample time by initiating a start time at which the viewer starts to delete a particular piece of content and initiates a stop time at which the viewer stops deleting the involved content. (FF 2). Thus, we find that the time stamps for designating delete-able content are set by the viewer and create a sample time corresponding in content which is not of interest to the viewer. Appellant also argues: [I]f a viewer tends not to watch certain portions of a program, such as commercials or credits, edit signals may be generated to segment such non-preferred portions of program content. The segments may then be subjected to filtering so as to remove unwanted portions of the program content. (Logan at col. 4, lines 28-60.) This operation of Logan bears no resemblance to the claimed invention. To the extent program editing in Logan arguably may be considered analogous to setting a media genre preference, Logan does not employ time concepts at all in identifying and/or determining whether to remove program segments. (Appeal Br. 9). We disagree with Appellant because contrary to Appellant’s position, as we found supra, program editing in Logan is based on a time sample which is established by the viewer by his/her setting start and stop points and/or by skipping Appeal 2012-000011 Application 11/774,624 6 certain content over other types of content based on viewer preference. (FF 3). We thus find that Logan discloses that the deleted or skipped content segment or sample time is based on user input of start and stop time stamps and/or his or her initiated skipping of the content. (FF 2, 3). As such, we find that Logan discloses a benchmark time having a value greater than zero based on the existence of such a deleted or skipped segment whose time value would need to be greater than zero to occur. CONCLUSIONS OF LAW We conclude the Examiner did not err in rejecting claims 1-20 under 35 U.S.C. § 103(a), and did err in rejecting claims 1-20 under 35 U.S.C. § 112, Second Paragraph. DECISION The Examiner’s rejection of claims 1-20 is affirmed. 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 Vsh