Ex Parte Stuart

Board of Patent Appeals and Interferences

Apr 8, 2009

09752700 (B.P.A.I. Apr. 8, 2009)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte ANTHONY EDWARD STUART
____________

Appeal 2009-0155
Application 09/752,700
Technology Center 2400
____________

Decided:1 April 8, 2009
____________

Before KENNETH W. HAIRSTON, JOHN A. JEFFERY,
and KARL D. EASTHOM, Administrative Patent Judges.

EASTHOM, Administrative Patent Judge.

DECISION ON APPEAL

1 The two month time period for filing an appeal or commencing a civil
action, as recited in 37 C.F.R. § 1.304, begins to run from the decided date
shown on this page of the decision. The time period does not run from the
Mail Date (paper delivery) or Notification Date (electronic delivery).
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STATEMENT OF THE CASE
Appellant appeals under 35 U.S.C. § 134 from the Final Rejection of
claims 1-6, 8-16 and 18-21, the only claims pending (Br. 2).2 We have
jurisdiction under 35 U.S.C. § 6(b).
We affirm.
According to Appellant, the invention improves upon conventional
electronic program guides (EPGs). Conventional EPGs can only be scrolled
back and forth in short intervals representing time frames of broadcast
programming, e.g., one-half hour intervals. Therefore, to view program
listings for programs to be shown several days in advance requires that the
EPG be tediously and slowly advanced. Appellant’s improved EPG
employs a marker readily movable to notches along a time line, wherein
such notches represent days, weeks and/or months into the past or future.
Moving the marker along the time line to one of the notches triggers an
appropriate display of programming associated with the time and day
designated by the notch. (Fig. 4; Spec. 2:9 to 3:2; 12:7-21).
Claim 1, illustrative of the invention, follows:
1. A method for providing an electronic program guide, comprising
steps of:
enabling a display on a display device, wherein the display includes a
time line having notches representing discrete predefined time slots thereon

2 Appellants most recent Brief (filed February 12, 2007) (“Br.”) and the
Examiner’s Answer (mailed June 29, 2007) (“Ans.”) detail the respective
positions of the parties.
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delineating times and days in the future from a current day and time to
which a marker can be moved; enabling a user to move the marker to one of
the notches delineating a desired day and time in the future, thereby causing
to be displayed in a time window displayed on the display device a time
period displaying indicia for programs to be broadcast during the time period
on said desired day and time.
The Examiner relies on the following prior art reference:
Rauch US 5,731,844 Mar. 24, 1998

Schlarb US 6,664,984 B2 Dec. 16, 2003
(filed Feb. 10, 2000)

Ludtke US 6,867,764 B2 Mar. 15, 2005
(effectively filed Mar. 22, 2000)

Schein US 2005/0229215 A1 Oct. 13, 2005
(effectively filed Apr. 11, 1997)

The Examiner rejected:
Claims 1-5, 8-15, and 18-21 as obvious under 35 U.S.C. § 103(a)
based on Rauch, Schein, and Ludtke.
Claims 6 and 16 as obvious under 35 U.S.C. § 103(a) over Rauch,
Schein, Ludtke, Schlarb.3

3 The Answer fails to list Ludtke in the rejection of claims 6 and 16.
However, page 10 of the Final Office Action (mailed July 11, 2006), lists
“US 6,867,764 B2” (i.e., Ludtke’s patent number) in the rejection heading.
Continued on next page
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ISSUE
Appellant’s argument (Br. 6-9) regarding the obviousness rejection of
claim 1 asserts that the Examiner erred in finding that the combined
references teach an electronic program guide (EPG) including “a time line
having notches representing discrete predefined time slots thereon
delineating times and days in the future from a current day and time” as set
forth in claim 1. Hence, the issue on appeal is:
Did Appellant show that the Examiner erred in finding that the
references collectively teach “an electronic program guide” (EPG) including
“a time line having notches representing discrete predefined time slots
thereon delineating times and days in the future from a current day and
time,” as recited in claim 1?4
FINDINGS OF FACT (FF)
1. Rauch discloses an EPG schedule layout 200 having a time scroll
bar 224 below program listings in a grid 210 format including slotted time
designations running parallel to the scroll bar. Moving the scroll bar
accordingly causes a change in the program listings based on the time of

Claims 6 and 16 depend respectively from claims 1 and 12. It is apparent
from the record that the Examiner rejected the dependent claims with the
same base references used to reject the independent claims, and further used
the additional reference to Schlarb to address the limitations of the
dependent claims. Therefore, the Examiner’s failure to list Ludtke in the
rejection of claims 6 and 16 in the Answer is deemed harmless error.
4 Appellant’s arguments focus on independent claims 1, 8, 12, and 18, with
only nominal distinctions, if any. Accordingly, pursuant to 37 C.F.R. §
41.37(c)(1)(vii), claim 1 is selected to represent claims 1-5, 8-15, and 18-21.
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broadcast. Different days can be selected with day selector arrow buttons
220. Rauch also discloses a variable grid size with large numbers of time
and channel entries, and expresses a desire to keep the program entry names
at a readable size. (Rauch, col. 6, ll. 5-12; col. 6, l. 58 to col. 7, l. 8; Fig. 2).
2. The Examiner (Ans. 4) identified what reasonably appears to be a
movable marker (see shaded/hatched rectangular area) in the time scroll bar
224 of Figure 2 of Rauch (see also col. 4, ll. 41-45, col. 7, ll. 1-3).
3. Schein discloses a similar EPG scroll bar 720 depicting a movable
marker and showing times spanning over two different days (i.e., from 3:30
PM on one day to 7:00 AM on the next day) (Fig. 12B, ¶¶ 0080, 0083).
4. Ludtke discloses slider 14 having a movable pointer/marker 12
disposed along on a scroll bar 15 for any type of display screen. The slider
allows users to scroll quickly to a vast array of desired information or data,
overcoming slower prior art display systems. The slider has indexing marks:
“Regardless of the mode, it is preferable for the slider to provide some
indexing marks or other graphical information to indicate to the user what
type of data will be entered as the slider is manipulated” (col. 4, ll. 47-50).
The slider can be programmed to depict any type of indexed data, including
different intervals of time. As depicted in Figures 5 and 6, the slider is
indexed to include time designations bearing labels such as “today,” “next
month,” “next year” 38, and “prev month.” (Ludtke, col. 1, ll. 28-39; col. 2,
ll. 26-27; 48-51; col. 4, ll. 50-51; col. 6, ll. 11-24; col. 7, ll. 28-60).
5. Ludtke states: “[O]ne advantage of the invention is that it allows a
user to quickly select the value of a data field by tapping the area of the
screen devoted to showing the value, sliding or tapping a pointer on a slider
to cycle th[r]ough [sic] possible choices, and then reselecting the area of the
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screen devoted to showing the value to confirm and set the choice” (col. 6,
ll. 11-16).
PRINCIPLES OF LAW
“[T]he examiner bears the initial burden, on review of the prior art or
on any other ground, of presenting a prima facie case of unpatentability.” In
re Oetiker, 977 F.2d 1443, 1445 (Fed. Cir. 1992). Under § 103, a holding of
obviousness can be based on a showing that “there was an apparent reason to
combine the known elements in the fashion claimed.” KSR Int’l v. Teleflex,
Inc., 127 S. Ct. 1727, 1740-41 (2007). Such a showing requires:
“some articulated reasoning with some rational underpinning to
support the legal conclusion of obviousness” . . . . [H]owever,
the analysis need not seek out precise teachings directed to the
specific subject matter of the challenged claim, for a court can
take account of the inferences and creative steps that a person
of ordinary skill in the art would employ.

Id., 127 S. Ct. at 1741 (citation omitted).
If the Examiner’s makes such a showing, the burden then shifts to the
Appellant to overcome the prima facie case with argument and/or evidence.
Obviousness is then determined on the basis of the evidence as a whole and
the relative persuasiveness of the arguments. See Oetiker, 977 F.2d at 1445.
ANALYSIS
Appellant argues (Br. 7) that “the fact that the Examiner relies on
Schein even when Rausch provides a complete solution for allowing users to
scroll through program information for multiple days and times in an
intuitive manner strongly suggests that the proposed combination is the
product of impermissible hindsight reconstruction.” Appellant’s argument
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amounts to the untenable assertion that a “simple substitution of one known
element for another” would not have been obvious. See KSR, 127 S. Ct at
1740.
The argument is not persuasive for additional reasons. Rauch’s
system is not “complete” for viewers who desire to simultaneously view
broadcast information on an EPG that spans more than one day (see FF 1).
Schein teaches viewing an EPG designating broadcast programming that
spans at least two days (FF 3), reasonably suggesting more than two days, as
desired. For example, viewers may wish to plan to view programs first that
will only be broadcasted on the current day, as compared to programs
designated to be broadcasted over two or more days in the future, including
the current day – without switching back and forth between different screens
as Rauch’s system requires (see FF 1). As the Examiner also reasoned (Ans.
5), such a chronological navigation manner of viewing information is
“intuitive.”
Skilled artisans also would have recognized that Schein’s multiple day
slider would have improved Rauch’s similar slider in a similar manner.
Merely extending the time line to span more than one or two days while
delineating the days spanned amounts to no “more than the predictable use
of prior art elements according to their established functions.” See KSR, 127
S. Ct. at 1740.
Appellant’s arguments (Br. 8, 9) that none of the references, including
Ludtke, teaches the indexed or notched slider delineating times and days in
an EPG amount to “attacking references individually.” “[O]ne cannot show
non-obviousness by attacking references individually where, as here, the
rejections are based on combinations of references.” In re Keller, 642 F.2d
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413, 426 (CCPA 1981). That is, the Examiner’s rejection (Ans. 6, 7) was
based on the combination of the teachings. In general, Rauch and Schein
teach the claimed EPG and slider delineating times and days (FF 1-3), while
Ludtke teaches a notched slider for indexing more than one day (FF 4, 5).
Moreover, Ludtke teaches notched /indexed sliders indexed over days,
months, or years (see FF 4), contrary to Appellant’s related argument (Br. 9)
that Ludtke fails to teach any asserted deficiencies with respect to Rauch and
Schein. Therefore, even if Appellant’s claim requires a display of three
different indexed days as Appellant asserts (id.), modifying Rauch’s and/or
Schein’s time line slider to include three such indexed/notched days would
have been obvious in light of Ludtke’s particular teaching of multiple
indexed days/months on a slider to readily access larger amounts of data (FF
4, 5). Such a modification would have allowed users to schedule desired
broadcast viewings as discussed above, without displaying too much
(unreadable) information at one time – a desire that Rauch discloses (FF 1).
Finally, Rauch teaches access to broadcast information associated
with different days through the separate button 220 (FF 1). The button
appears on the same screen as the time line, and allows users to access
broadcast data at different days while maintaining a readable data size (FF
1). Thus, replacing Rauch’s separate button and time line with Ludtke’s
combined notches/delineations along a time line, amounts to a simple
rearrangement or substitution of similar elements and their established
functions with no unexpected changes in those functions. See KSR, 127 S.
Ct. at 1739-40.
For the reasons discussed above, Appellant has failed to demonstrate
the Examiner erred in finding that the references collectively teach the
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disputed limitations of claim 1. Therefore, we will sustain the obviousness
rejection of claim 1, and claims 2-5, 8-15, and 18-21, which were not argued
separately and fall with claim 1. We will also sustain the obviousness
rejection of claims 6 and 16 based on the added teaching of Schlarb, since
Appellant relies on similar arguments presented for claim 1 (see Br. 10, n.3
supra).
CONCLUSION
Appellant did not show that the Examiner erred in finding that the
references collectively teach “an electronic program guide” including “a
time line having notches representing discrete predefined time slots thereon
delineating times and days in the future from a current day and time” as set
forth in claim 1.
DECISION
We affirm the Examiner's decision rejecting claims 1-6, 8-16, and 18-
21.
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

tdl

Joseph S. Tripoli
THOMSON multimedia Licensing Inc.
Patent Operations
Two Independence Way, P.O. Box 5312
Princeton NJ 08543-5312