Ex Parte Shanks et al

Patent Trial and Appeal Board

Sep 27, 2016

12098747 (P.T.A.B. Sep. 27, 2016)

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.
12/098,747 04/07/2008 David Eric Shanks PD-206035A 2980
20991 7590 09/28/2016
THE DIRECTV GROUP, INC.
PATENT DOCKET ADMINISTRATION
CA / LA1 / A109
2230 E. IMPERIAL HIGHWAY
EL SEGUNDO, CA 90245
EXAMINER
EKPO, NNENNA NGOZI
ART UNIT PAPER NUMBER
2425
MAIL DATE DELIVERY MODE
09/28/2016 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 APPEAL BOARD
____________________

Ex parte DAVID ERIC SHANKS,
MATTHEW J. THOMPSON, MARK A. SHURGOT,
DAVID E. FELDSTEIN, EDGAR C. CAMACHO,
CRAIG LE, and ILAN TIRER
____________________

Appeal 2015-006063
Application 12/098,747
Technology Center 2400
____________________

Before HUNG H. BUI, JON M. JURGOVAN, and AMBER L. HAGY,
Administrative Patent Judges.

JURGOVAN, Administrative Patent Judge.

DECISION ON APPEAL
Appellants1 seek review under 35 U.S.C. § 134(a) from a final
rejection of claims 1–17 and 20–29. We have jurisdiction under 35 U.S.C.
§ 6(b).
We affirm.2

1 Appellants identify The DIRECTV Group, Inc. as the real party in interest.
(App. Br. 2.)
2 Our Decision refers to the Specification filed Apr. 7, 2008 (“Spec.”), the
Final Office Action mailed Mar. 18, 2014 (“Final Act.”), the Appeal Brief
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CLAIMED INVENTION
The claims are directed to a mosaic channel video stream with
interactive services. (Spec. Title.) Claim 1, reproduced below, is illustrative
of the claimed subject matter:
1. A system for providing interactive mosaic video information,
comprising:
a broadcast delivery system, comprising a transmitter for
transmitting a broadcast signal comprising a plurality of viewer
channels including an interactive mosaic video channel having
the interactive mosaic video information, the interactive mosaic
video information comprising:
a plurality of video cells presenting at least video
information, each video cell associated with one of the plurality
of individual video feeds, each video cell further comprising an
area within the video cell reporting data related to the video feed,
the data being distinct from guide data and broadcast with the
video information; and
wherein each video cell is selectable via a cursor, user-
movable between the plurality of video cells, for selecting at least
one characteristic associated with a selected one of the plurality
of video cells, such that the user is able to directly select a video
program associated with the selected video cell, wherein at least
one of the plurality of individual video feeds is a separately
selectable dynamic presentation of highlight events, wherein
which of the highlight events in the separately selectable
dynamic presentation of highlight events presented are user-
selected.
(App. Br. 16 – Claims App’x.)

REJECTIONS
(1) Claims 1, 2, 5, 8–11, 14, 17, 22, 23, 27, and 28 stand rejected
under 35 U.S.C. § 103(a) based on Martin (US 2002/0067376 A1, publ. June

filed Oct. 20, 2014 (“App. Br.”), the Examiner’s Answer filed Mar. 25, 2015
(“Ans.”), and the Reply Brief filed May 26, 2015 (“Reply Br.”).
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6, 2002) and Logan (US 2004/0255336 A1, publ. Dec. 16, 2004.) (Final
Act. 4–8.)
(2) Claims 3, 6, 12, and 15 stand rejected under 35 U.S.C. § 103(a)
based on Martin, Logan, and Kastelic (US 2003/0011715 A1, publ. Jan. 16,
2003.) (Final Act. 8–10.)
(3) Claims 4 and 13 stand rejected under 35 U.S.C. § 103(a) based
on Martin, Logan, Kastelic, and Callahan (US 6,396,473 B1, iss. May 28,
2002.) (Final Act. 10.)
(4) Claims 7 and 16 stand rejected under 35 U.S.C. § 103(a) based
on Martin, Logan, and Tanskanen (US 2002/0054088 A1, publ. May 9,
2002.) (Final Act. 10–11.)
(5) Claims 20 and 25 stand rejected under 35 U.S.C. § 103(a) based
on Martin, Logan, and Schrader (US 2002/0166123 A1, publ. Nov. 7, 2002.)
(Final Act. 11–12.)
(6) Claims 24 and 29 stand rejected under 35 U.S.C. § 103(a) based
on Martin, Logan, and Brodersen (US 2012/0304066 A1, publ. Nov. 29,
2012.) (Final Act. 12–13.)
(7) Claims 21 and 26 stand rejected under 35 U.S.C. § 103(a) based
on Martin, Logan, Schrader, and Macrae (US 2005/0015803 A1, publ. Jan.
20, 2005.) (Final Act. 13–14.)

ANALYSIS
Claims 1 and 9
Claim 1 recites “wherein at least one of the plurality of individual
video feeds is a separately selectable dynamic presentation of highlight
events, wherein which [sic] of the highlight events in the separately
selectable dynamic presentation of highlight events presented are user-
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selected.”3 (App. Br. 16 – Claims App’x.) The Examiner relies on Logan to
teach this feature. (Final Act. 5 citing Logan ¶¶ 46–52, Fig. 4).
Appellants argue that Logan teaches away from the claimed feature.
(App. Br. 7–8 citing Logan ¶ 43.) Specifically, Appellants contend that
Logan teaches, due to time delay in satellite transmissions, the feeds that
make up an interactive mosaic channel broadcast signal must be transmitted
separately, pre-stored, and assembled at the set top box. (Id.) Appellants
contend that Logan teaches the cells with feeds cannot be transmitted in a
satellite broadcast signal as a mosaic channel.
This argument is not persuasive. The Examiner does not rely upon
Logan, but Martin, for the broadcast delivery system. (See Final Act. 4–5.)
Thus, Logan’s use of satellite transmission is not responsive to the rejection
as the Examiner applies it.
Moreover, even if Logan’s broadcast delivery system were relevant to
the argued limitation, we note that Logan is not limited to satellite delivery.
Instead, Logan teaches use of cable and Internet delivery as well. (Logan
¶¶ 19–21, Figs. 1–3.) “[T]he test for combining references is not what the
individual references themselves suggest but rather what the combination of
disclosures taken as a whole would suggest to one of ordinary skill in the
art.” See In re McLaughlin, 443 F.2d 1392, 1395 (CCPA 1971). Taken as a
whole, Logan is not limited to satellite delivery, and Appellants’ argument is
unpersuasive to show Examiner error.
Furthermore, it has been held that mere disclosure of more than one
alternative does not constitute teaching away from those alternatives because
such a disclosure does not criticize, discredit, or otherwise discourage the

3 In the event of further prosecution, the Examiner should evaluate whether
this limitation is compliant with 35 U.S.C. § 112, second paragraph.
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solution claimed. See In re Fulton, 391 F.3d 1195, 1201 (Fed. Cir. 2004).
Here, Logan’s teaching of satellite transmission cannot be viewed as a
teaching away from known alternatives of cable and Internet transmission
for a mosaic channel as described therein. Thus, Logan, when properly
considered, does not teach away from Martin or the claimed invention.
We further note that there is no language in the claims stating that the
broadcast delivery system is limited to satellite transmission. Thus,
Appellants argument is not commensurate in scope with the claim as written.
For all of these reasons, we find Appellants’ argument unpersuasive to
show Examiner error.
Claims 22 and 27
Claims 22 and 27 recite “wherein the interactive mosaic video channel
is an interactive mosaic video live highlight channel depicting highlights of a
plurality of live events, and each of the video feeds depicts an associated
highlight of an associated live event.” The Examiner finds this feature in
Martin. (Final Act. 7 citing Martin ¶ 117.) Appellants argue, in Martin, the
user must tune to another channel rather than view highlights on the
interactive mosaic video channel. (App. Br. 10–13, Reply Br. 5–7.) Again,
this argument is not commensurate in scope with the claimed invention,
which does not require the video feeds, upon selection, to be rendered in the
mosaic channel.
Furthermore, claims are given their broadest reasonable interpretation
consistent with the specification. In re Am. Acad. of Sci. Tech. Ctr., 367
F.3d 1359, 1369 (Fed. Cir. 2004). Appellants’ Specification describes:
Within the interactive mosaic channel, the viewer is given
several choices of other viewer channels to view, either
simultaneously as in a matrix view, or the viewer can choose one
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of the matrixed viewer channels directly from the interactive
mosaic channel.

(Spec. 9.)
Thus, the Specification teaches other channels may be viewed from
the interactive mosaic channel, which is the same as the cited part of
Martin’s disclosure. It was reasonable for the Examiner to give the term
“interactive mosaic channel” the full breadth it has in the Specification
absent restrictive language in the claims. Thus, we agree with the Examiner
the argued limitation, construed according to its broadest reasonable
interpretation, is present in Martin. Appellants’ argument, which depends on
an unduly narrow view of the claims, is unpersuasive to show error.
Claims 23 and 28
Claim 23 recites “the receiver further records the interactive mosaic
video channel for subsequent playback by the user, wherein selection of a
further video cell of the subsequently played back recorded interactive
mosaic video channel presents the recorded video information associated
with the selected further video cell.” (App. Br. 19 – Claims App’x.) The
Examiner finds these recording and playback features in Martin. (Final Act.
7–8 citing Martin ¶¶ 25, 89.)
Appellants argue that because the interactive video channel is already
assembled as it is received in the claimed invention, there is no difficulty in
playing back all the cells at the same time. (App. Br. 11–13, Reply Br. 7–9.)
However, the claims do not recite that recording the interactive mosaic video
channel entails recording the video feeds for each of the cells. Moreover,
there is no mention in the claims of playing back all the cells at the same
time. (Id.) Hence, Appellants’ arguments are not commensurate in scope
with the claims as written.
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Appellants also argue channel selection results in reproduction of the
video cells much as they would be viewed in real time, rather than in
recorded form. (Id.) This limitation also is not recited in the claims.
Further, as noted, Appellants’ Specification states the interactive mosaic
channel may provide choices of other channels to view (Spec. 9), which is
no different than what Martin teaches (e.g., Martin ¶ 117). In addition, the
claims do not require recording video feeds for all cells of an interactive
video channel. Hence, we find Appellants’ arguments unpersuasive to show
Examiner error.
Reply Brief Arguments
Appellants present new arguments in the Reply Brief. (Reply Br. 2–
9.) For example, Appellants argue, for the first time on appeal, that Martin
and Logan are not in the same field of art. (Reply Br. 3.) Absent a showing
of good cause, we do not consider new arguments in a reply brief. See 37
C.F.R. § 41.41(b)(2).
Even if we were to consider this argument, we would find it
unpersuasive because the Examiner finds Martin and Logan transmit and
receive mosaic live events, and states as support for the combination the
motivation of rendering two or more different media programs at the same
time. (Final Act. 5–6, Ans. 4–5.) Appellants do not address these findings,
and thus we find Appellants’ new argument in Reply is not only untimely,
but substantively deficient to show Examiner error.
Remaining Claims
No separate arguments are presented for the dependent claims and,
therefore, we sustain the rejection for the reasons previously stated. 37
C.F.R. § 41.37(c)(1)(iv); In re King, 801 F.2d 1324, 1325 (Fed. Cir. 1986);
In re Sernaker, 702 F.2d 989, 991 (Fed. Cir. 1983).
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DECISION
We affirm the rejection of claims 1–17 and 20–29 under 35 U.S.C.
§ 103(a).
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