Ex Parte Schwartz

Patent Trial and Appeal Board

Mar 19, 2014

11821465 (P.T.A.B. Mar. 19, 2014)

UNITED STATES PATENT AND TRADEMARK OFFICE
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BEFORE THE PATENT TRIAL AND APPEAL BOARD
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Ex parte RICHARD T. SCHWARTZ
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Appeal 2011-012975
Application 11/821,465
Technology Center 2400
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Before JASON V. MORGAN, JOHNNY A. KUMAR, and
MICHAEL J. STRAUSS, Administrative Patent Judges.

KUMAR, Administrative Patent Judge.

DECISION ON APPEAL

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STATEMENT OF CASE
Introduction
Appellant appeals under 35 U.S.C. § 134 from a final rejection of
claims 1-15, 17-21, and 23-27. Claim 16 has been cancelled.1 We have
jurisdiction under 35 U.S.C. § 6(b).
We affirm.
Rather than reiterate the arguments of Appellant and the Examiner,
we refer to the Appeal Brief (“Br.”) filed February 15, 2011, and corrected
March 21, 2011, and the Answer (“Ans.”) mailed June 8, 2011, for the
respective details. We have considered in this decision only those
arguments Appellant actually raised in the Brief. Any other arguments
which Appellant could have made but chose not to make in the Brief are
deemed to be waived. See 37 C.F.R. § 41.37(c)(1)(vii).
Exemplary Claim
Exemplary claim 1 under appeal reads as follows:
1. A system for presenting audio-video programming with alternative
content, comprising:
a first input port for receiving, from one or more remote input sources,
a first signal containing at least one audio-video program, the at least one
audio-video program having at least one default component associated
therewith;
a second input port for receiving, from a remote data system separate
from the one or more input sources, a selected alternative content stream, the
selected alternative content stream selected based on a viewer selection of
one of a plurality of available alternative content streams;
a first output port for transmitting a modified audio-video program to
an output device; and

1 Appellant states claim 22 “never existed because of a numbering error.”
Br. 1.
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at least one controller in communication with the first input port, the
second input port and the first output port;
the at least one controller operative to (i) synchronize the at least one
audio-video program and the selected alternative content stream to form the
modified audio-video program and (ii) transmit the modified audio-video
program via the first output port.
Rejections on Appeal2
Claims 1-14, 17-21, and 23-25 stand rejected under 35 U.S.C.
§ 102(b) as anticipated by Rosser (US 6,446,261 B1; Sep. 3, 2002). Ans. 4.
Claims 15, 26, and 27 stand rejected under 35 U.S.C. § 103(a) as
obvious over Rosser in view of Jain (US 6,144,375; Nov. 7, 2000). Ans. 14.
Appellant’s Contentions
1. Appellant contends the Examiner erred in rejecting claim 1
because, while Rosser’s system allows views to select a television show, it
automatically selects advertising content rather than allowing user selection
of the advertisements. Br. 7.
2. Appellant also contends the Examiner erred in rejecting claim 1
because: “[t]hus, [in claim 1] the at least one controller forms the modified
audio-video program based on information received from two different
sources. In contrast, Rosser’s set top boxes receive content form [sic] a
single source.” Id.
3. Appellant contends the Examiner erred in rejecting dependent
claim 6 because “Rosser makes no mention of HDMI, S-video, RCA, and
the other elements of claim 6.” Br. 8.

2 Separate patentability is not argued for claims 2-5 and 7-10. Regarding
claims 11-15, 17-19, 21, and 23-27, Appellant reiterates the same arguments
submitted for patentability of claim 1. Br. 8-11. Except for our ultimate
decision, these claims are not discussed further herein.
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4. Appellant also contends the Examiner erred in rejecting
dependent claim 20 because “[a]lthough Rosser identifies demographics,
such as age, ethnicity, etc., Rosser does not teach the group of
characteristics.” Br. 11.
Issue on Appeal
Did the Examiner err in rejecting claims 1-14, 17-21, and 23-25 as
being anticipated by Rosser or in rejecting claims 15, 26, and 27 as obvious
over Rosser and Jain because the cited references fail to disclose, teach or
suggest the argued limitations?

ANALYSIS
We have reviewed the Examiner’s rejections in light of Appellant’s
arguments that the Examiner has erred. We adopt as our own the findings
and reasons set forth in the Examiner’s Answer (see Ans. 5-18). We
highlight and address specific findings and arguments for emphasis as
follows.
In response to each of the arguments raised by Appellant, the
Examiner presents detailed findings and responses, which are not rebutted
by Appellant in a Reply Brief.
As to Appellant’s contention 1, we agree with the Examiner that
Rosser explicitly discloses: “There could also be a ‘write-in’ dimension to
the viewing providing the viewer the opportunity to select extra specific
profile factors. For instance, viewers who are looking for a car may add this
fact to their viewer profile in order to deliberately solicit advertisements for
cars.” Ans. 16-17 (quoting Rosser, col. 4, ll. 30-48) (emphases added). In
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other words, the opportunity to select profile factors to solicit advertisements
discloses the “viewer selection” limitation of claim 1.
As to Appellant’s contention 2, we disagree with Appellant’s
arguments. Rosser explicitly discloses “television or other source” for
routing alternate television or video feeds. See Rosser, col. 13, ll. 13-23.
We thus agree with the Examiner that “Rosser’s set top boxes do indeed
receive content from different sources.” Ans. 17.
As to Appellant’s contentions 3 and 4, we adopt the Examiner’s
findings and underlying reasoning (Ans. 17-18), which are incorporated
herein by reference.
Consequently, Appellant has not shown error in the Examiner’s
rejections of claims 1-15, 17-21, and 23-27.

CONCLUSIONS
The Examiner did not err in rejecting claims 1-14, 17-21, and 23-25
under 35 U.S.C. § 102(b) as being anticipated by Rosser.
The Examiner did not err in rejecting claims 15, 26, and 27 under
35 U.S.C. § 103(a) as being unpatentable over Rosser in view of Jain.

DECISION
The Examiner’s rejections of claims 1-15, 17-21, and 23-27 are
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).
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AFFIRMED

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