Ex Parte Setos

Patent Trial and Appeal Board

Aug 16, 2016

12735566 (P.T.A.B. Aug. 16, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
121735,566 12/21/2010
78537 7590 08/18/2016
Cantor Colburn LLP - Fox Entertainment Group
20 Church Street
22nd Floor
Hartford, CT 06103
FIRST NAMED INVENTOR
Andrew G. Setos
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.
FEG0257US2 6775
EXAMINER
KURIEN, CHRISTEN A
ART UNIT PAPER NUMBER
2427
NOTIFICATION DATE DELIVERY MODE
08/18/2016 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):
usptopatentmail @cantorcolbum.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte ANDREW G. SETOS
Appeal2015-002119
Application 12/735,566
Technology Center 2400
Before JOSEPH P. LENTIVECH, KARA L. SZPONDOWSKI, and
JOHN R. KENNY, Administrative Patent Judges.
SZPONDOWSKI, Administrative Patent Judge.
DECISION ON APPEAL
Appellant appeals under 35 U.S.C. § 134(a) from the Examiner's
Final Rejection of claims 1 and 3-12. Claim 2 has been cancelled. (App.
Br. 5). We have jurisdiction under 35 U.S.C. § 6(b ).
We AFFIRM.
Appeal2015-002119
Application 12/735,566
STATEMENT OF THE CASE
Appellant's invention is directed to a time dependent replacement of
stored broadcast content. (Spec. i-f 4). Claim 1, reproduced below with the
disputed limitations in italics, is representative of the claimed subject matter:
1. A method for time dependent replacement of stored broadcast
content, comprising:
receiving and storing a broadcast steam on a storage device for
future playback;
identifying to said device or by said device one or more time
sensitive segments within said stored broadcast stream;
upon user controlled playback, said device determining whether at
least one of said one or more time sensitive segments has expired or is
outdated based a separate file or based upon a determination of an initial
broadcast date; and
replacing said one or more segments with a contemporary segment
before playback of said expired or outdated segment.
REJECTIONS
Claims 1and10-12 stand rejected under 35 U.S.C. § 102(b) as being
anticipated by Liga et al. (US 2003/0154128 Al; published Aug. 14, 2003).
Claims 3-9 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over the combination of Liga and Berkson et al. (US
2004/0148424 Al; published July 29, 2004).
ANALYSIS
Issue: Did the Examiner err in finding Liga discloses "said device
determining whether at least one of said one or more time sensitive segments
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Application 12/735,566
has expired or is outdated based a separate file or based upon a
determination of an initial broadcast date," as recited in independent claim
1?
Appellant contends the device in Liga "does not determine whether or
not to replace an ad. Rather, it reads an instruction from the ad to replace
the ad." (App. Br. 4). According to Appellant, in Liga the device "merely
reads instructions to replace embedded in the broadcast, and thus does not
need to have the device determine the initial broadcast date, compare against
the current date, etc." (Id.) Further, Appellant argues in Liga "[t]here is no
indication that the Liga 'stamp' simply provides the initial broadcast date."
(Id.) Rather, Appellant contends, Liga provides an expiration date. (Reply
Br. 2).
We are not persuaded by Appellant's arguments. Liga describes
advertisements that may be encoded or embedded with hidden information,
such as a time or date stamp indicating when an advertisement expires.
(Liga i-fi-1 9, 24, Fig. 7). In Liga, as the device plays back a recorded video
signal, "it may check the embedded information" and "substitute an updated
advertisement" if "the embedded information indicate[ s] that an
advertisement is stale." (Id.) Moreover, Liga explicitly describes "the
embodiment determines ... whether the time-sensitive information
embedded in the advertisement indicates that the advertisement is now
stale." (Liga i183). Liga further describes that such non-displayable data
(the hidden information, such as the time or date stamp) may be transmitted
as separate packets in the programming signal data stream. (Liga i153).
Appellant has not persuasively explained why Liga's determining that
an advertisement is stale, and if so, replacing that advertisement, "does not
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Application 12/735,566
determine whether or not to replace an ad" and constitutes merely "read[ing]
an instruction from the ad to replace the ad." We note Appellant's
Specification does not provide a definition for "determining" as used in the
disputed limitation. Appellant directs us to paragraph 11 of Appellant's
Specification as describing the disputed limitation. (App. Br. 3). Paragraph
11 states in part "the device indicates that at least one time sensitive segment
exists." Under a broad but reasonable interpretation, consistent with the
Specification, we agree with the Examiner the disputed limitation is
disclosed in Liga. (See Ans. 3-5; Final Act. 2---6).
With regard to Appellant's argument that Liga does not disclose
"based upon a determination of an initial broadcast date," we note that the
limitation recites "determining ... based [on] a separate file or based upon a
determination of an initial broadcast." In the Answer, the Examiner finds
that Liga's transmission of the non-displayable information (i.e., time stamp
or expiration date) in separate packets discloses the claimed separate file.
(See Ans. 3-5). We observe that Appellant has not, in the Reply Brief,
responded to the Examiner's additional findings or otherwise rebutted the
Examiner's response.
Therefore, on this record, because the Examiner's finding is
reasonable, we are not persuaded the Examiner erred in finding Liga
discloses the disputed limitation. Accordingly, we sustain the Examiner's
rejection of independent claim 1 and dependent claims 10-12, which are not
separately argued.
Issue 2: Did the Examiner err in finding the combination of Liga and
Berkson teaches or suggests the limitations in claims 3-9?
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Application 12/735,566
Appellant argues Berkson does not teach or suggest "a separate file."
(App. Br. 5). Appellant also argues:
Additionally, Berkson does not teach the various
dependent claims reliant upon claim 3, e.g., the separate file
describing segments to be replaced in the stored broadcast as in
claim 4, multiple separate files as in claim 9, initial broadcast
dates (described in various claims (note, Berkson discusses peer
to peer sharing and resurrection of files, without reference to
the initial broadcast date)), etc.
(App. Br. 5---6).
We are not persuaded by Appellant's arguments. As described above,
in the Answer, the Examiner finds Liga discloses a separate file. (Ans. 3-5).
Appellant has not addressed or rebutted these findings. With respect to the
additional limitations in claims 3-9, Appellant has also failed to rebut the
Examiner's findings. To show error in the Examiner's position, Appellant
must explain why the relied-upon disclosure does not disclose the claimed
feature, rather than merely alleging that the feature is not shown. See 37
C.F.R. § 41.37(c)(l)(iv) ("A statement which merely points out what a claim
recites will not be considered an argument for separate patentability of the
claim."); In re Lovin, 652 F.3d 1349, 1357 (Fed. Cir. 2011); In re Baxter
Travenol Labs, 952 F.2d 388, 391 (Fed. Cir. 1991) ("It is not the function of
this court to examine the claims in greater detail than argued by an
appellant[.]").
Accordingly, on this record, we are not persuaded the Examiner erred
in finding the combination of Liga and Berkson teaches or suggests the
disputed limitations in claims 3-9, and we therefore sustain the Examiner's
rejection of dependent claims 3-9.
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DECISION
For the above reasons, the Examiner's rejection of claims 1 and 3-12
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)(l )(iv).
AFFIRMED
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