Ex Parte Svendsen et alDownload PDFPatent Trial and Appeal BoardDec 20, 201613433239 (P.T.A.B. Dec. 20, 2016) Copy Citation 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. 13/433,239 03/28/2012 Jostein SVENDSEN 27LG-166027 6456 69849 7590 12/22/2016 SHEPPARD, MULLIN, RICHTER & HAMPTON LLP 379 Lytton Avenue Palo Alto, CA 94301 EXAMINER YANG, NIEN ART UNIT PAPER NUMBER 2484 NOTIFICATION DATE DELIVERY MODE 12/22/2016 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): svpatents @ sheppardmullin.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte JOSTEIN SVENDSEN and BJORN RUSTBERGGAARD Appeal 2015-007649 Application 13/433,2391 Technology Center 2400 Before MARC S. HOFF, CARL L. SILVERMAN, and KAMRAN JIVANI Administrative Patent Judges. SILVERMAN, Administrative Patent Judge. DECISION ON APPEAL Appellants appeal under 35 U.S.C. § 134(a) from the Examiner’s Final Rejection of claims 1, 3—5, 7—16, and 18—24. Final Act. 2. We have jurisdiction under 35 U.S.C. § 6(b). We affirm. 1 Appellants identify the real party in interest as WeVideo, Inc. App. Br. 2. Appeal 2015-007649 Application 13/433,239 STATEMENT OF THE CASE The disclosed and claimed invention relates to digital media editing. Abstract; Spec. 1 5. Claim 1, reproduced below, is exemplary of the subject matter on appeal (disputed limitations emphasized): 1. A system, comprising: a content datastore; a layer datastore; a layer-scalable content editor launch engine; a client-remote content placement engine coupled to the content datastore, the layer datastore, and the layer-scalable content editor launch engine; a layer superimposing engine coupled to the client-remote content placement engine; a variable-layer content playing engine having an arbitrary number of layers and coupled to the layer superimposing engine; a royalty estimation engine; wherein, in operation: the layer-scalable content editor launch engine launches an editor window at a client in response to a request from the client; the client-remote content placement engine places first crowdsourced content from the content datastore onto a multi-layer timeline content compilation represented in the editor window, wherein the content datastore is remote relative to the client; the layer superimposing engine superimposes, in response to an instruction to superimpose, a superimposable layer, comprising second crowdsourced content, onto the multilayer timeline content compilation, thereby creating a superimposed layer, 2 Appeal 2015-007649 Application 13/433,239 the variable-layer content playing engine plays the multi-layer timeline content compilation, including the first crowdsourced content, in the superimposed layer; the royalty estimation engine estimates a cumulative royalty, associated with publishing the multi-layer timeline content compilation, by requesting a licensing value for the first crowdsourced content, the licensing value reflecting an estimated cost of licensing the first crowdsourced content for use in the multi-layer timeline content compilation. App. Br. 20. (Claims App.). THE REJECTIONS Claims 1, 3, 13, and 14 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Khatib, et al. (US 20100260468 Al; Oct. 14, 2010) (“Khatib”), Wyatt et al. (US 20120189282 Al; Jul. 26, 2012) (“Wyatt”), and Iwata et al. (US 20010041050 Al; Nov. 15, 2001) (“Iwata”). Final Act. 3—9. Claims 4—5, 8—9, 15—16, and 19—21 stand rejected under 35 U.S.C. 103(a) as being unpatentable over Khatib, Wyatt, Iwata, and Gavin, et al. (US 20080183608 Al; July 31, 2008) (“Gavin”). Final Act. 9-13. Claims 7 and 18 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Khatib, Wyatt and Iwata, and Malackowski et al. (US 20100169127 Al; July 1, 2010) (“Malackowski”). Final Act. 13-14. Claims 10 and 22 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Khatib, Wyatt, Iwata, and Halterman et al. (US 20120245952 Al; Sept. 27, 2012) (“Halterman”). Final Act. 1^U15. Claims 11 and 23 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Khatib, Wyatt, Iwata, and Perrone (US 20070208442 Al; Sept. 6, 2007) (“Perrone”). Final Act. 16. 3 Appeal 2015-007649 Application 13/433,239 Claims 12 and 24 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Khatib, Wyatt, Iwata and Mclntire, et al. (US 20070250901 Al; Oct. 25, 2007) (“Mclntire”). Final Act. 17. ANALYSIS Appellants argue the cited references, particularly Wyatt, do not teach the claim 1 limitation: the layer superimposing engine superimposes, in response to an instruction to superimpose, a superimposable layer, comprising second crowdsourced content, onto the multilayer timeline content compilation, thereby creating a superimposed layer. App. Br. 5-8. According to Appellants, Wyatt teaches the use of advertisements, but “[an] advertisement is not crowdsourced content.” App. Br. 8 (citing Spec. 1 85; Wyatt 193). In particular, Appellants argue: The cited portion of Wyatt recites “[t]he user may be given the option of selecting, using part 177 of the interface, a previously created advertisement to be displayed each time the video is played after the blog entry is published ... The user may also be enabled to select 'interstitial' advertisements, meaning an advertisement that runs part way into the blog, or an advertisement that is overlayed with a portion of the video when played.” Wyatt, para. [0093]. An advertisement is not crowdsourced content. See Specification, para. [0085]. The Specification states, as an example of crowdsource content, “participants of the 'Arab Spring' revolts or the 'Occupy Wall Street' movement of 2011 have access to mobile devices that allow protest footage to be captured and uploaded to video sites.” Specification, para. [0085]. Wyatt defines advertising as “‘commercials,’ ‘advertisements,’ ‘ads’ or ‘ad spots,’ that promote businesses or programming on the network” Wyatt, para. [003]. In further 4 Appeal 2015-007649 Application 13/433,239 defining an advertisement, Wyatt states that an advertisement can be a user-generated content message that includes “a web link to complete an electronic commerce transaction and/or to provide additional information and promotional material associated with the advertiser's particular product or service.” Wyatt, para. [0010]. Id. The Examiner finds that Wyatt teaches “an advertisement can be a user-generated content message that includes ‘a web link to complete an electronic commerce transaction and/or to provide additional information and promotional material associated with the advertiser’s particular product or service.’” Ans. 18 (citing 110). In particular, the Examiner finds: Wyatt discloses methods and apparatus to allow groups of people to distribute user-generated digital photographs and record video to be part of a program as advertisement to share with others for promoting particular product or service over the Internet or other data networks. The content generated and contributed from groups of people is crowdsourced content (see Wyatt, para. [0001 ]: “When user generated content is uploaded or shared for a specific purpose, such as for example, in response to a request for a certain type of content, it may be referred to as crowd-sourced content”). Thus, advertisement disclosed by Wyatt is referred to as crowdsourced content and Wyatt discloses the claimed limitations. Ans. 18-19. We are not persuaded by Appellants’ arguments and agree, instead, with the Examiner’s findings. Appellants present no persuasive argument that the Examiner’s findings and claim interpretation of the term “crowdsourced” to include the teaching of Wyatt is unreasonable or overbroad. Claim terms in a patent application are given the broadest reasonable interpretation consistent with the Specification, as understood by 5 Appeal 2015-007649 Application 13/433,239 one of ordinary skill in the art. In re Crish, 393 F.3d 1253, 1256 (Fed. Cir. 2004). Appellants argue that Iwata does not teach the claim 1 limitation: The royalty estimation engine estimates a cumulative royalty, associated with publishing the multi-layer timeline content compilation, by requesting a licensing value for the first crowdsourced content, the licensing value reflecting an estimated cost of licensing the first crowdsourced content for use in the multi-layer timeline content compilation. App. Br. 9-10; Reply Br. 2-A. According to Appellants, Iwata teaches calculating a royalty fee using a copyright information table but does not teach requesting a license value because it uses “a standard royalty fee to calculate a royalty fee.” App. Br. 9—10 (citing Iwata Abstract; || 57, 58, 132); see also Reply Br. 2—\. The Examiner finds Iwata Figure 6 is “an example of the copyright information table 331” and “may further include information concerning licenses for the use of copyrighted materials.” Ans. 19-20 (citing 1231; Fig. 6). Additionally, the Examiner finds that “it is clear that a licensing value can be retrieved from the copyright information table together with standard copyright royalty fee for calculating estimated cost for the use of copyrighted materials.” Id. We are not persuaded by Appellants’ arguments and agree, instead, with the findings of the Examiner. Appellants present no persuasive argument that the Examiner’s findings and interpretation of the term “licensing value” to include the teaching of Iwata is unreasonable or overbroad. In re Crish, 393 F.3d 1253, 1256. In view of the above, we sustain the rejection of claim 1 and independent claim 13 which recites similar limitations and for which 6 Appeal 2015-007649 Application 13/433,239 Appellants rely on similar arguments. We also sustain the rejection of dependent claims 2, 5, 7—12, and 18—24 as these claims are not argued separately. See 37 C.F.R. § 41.37(c)(l)(iv). Appellants argue the combination of Khatib, Wyatt, Iwata, and Gavin do not teach the claim 4 limitation: ft]he system of claim 1, further comprising a content rights management engine that, in operation, provides a depublication instruction if a user associated with the layer superimposing engine does not have publication rights to the first crowdsourced content. App. Br. 13—16; Reply Br. 4—6. According to Appellants, the Examiner errs by finding Gavin teaches this limitation. App. Br. 14—16; Reply Br. 4—6. In particular, Appellants argue: Gavin teaches granting a user access a specific right to content by using a purchase request. Gavin does not teach limiting a user access to content. Specifically, Gavin does not teach limiting a user's ability to publish content based on whether they have a right to publish content. App. Br. 15 (citing Gavin || 20, 21, 30 91; Figs. 3, 8A). The Examiner finds: The payment system taught by Gavin is configured to allow a user to purchase rights to use data that the user selects (see Gavin para. [0019]). The payment system includes a purchase subsystem configured to receive and process user purchase requests for granting a data-right combination to use. Publication right is one of rights that a user can select, preview, and purchase a selected data (see Gavin para. [0023]). Clearly, Gavin system is configured to limit a user's ability to publish a content if the 7 Appeal 2015-007649 Application 13/433,239 user does not have publication rights granted for doing so. A publication right will be granted to the user only after it is purchase by the user. Ans. 20. We are not persuaded by Appellants’ arguments and agree, instead, with the Examiner’s findings. Appellants present no persuasive argument that the Examiner’s findings and claim interpretation to include the teaching of Gavin is unreasonable or overbroad. In re Crish, 393 F.3d 1253, 1256. In addition, we are not persuaded of error by the Examiner by Appellants’ argument, presented in the Reply Brief at page 6 that “Gavin does not teach a depublication instruction to depublish content after it has been published.” This argument was not presented in the Appeal Brief and is not responsive to a new rejection or argument first raised in the Examiner’s Answer. Therefore, in the absence of good cause shown, this new argument is waived. Ex Parte Borden, 93 USPQ2d 1473 (BPAI 2010). In view of the above, we sustain the rejection of claim 4 and claim 15 which recites the same limitation and for which Appellants rely on substantially the same arguments. DECISION We affirm the Examiner’s decision rejecting claims 1, 3—5, 7—16, and 18-24. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R. § 1.136(a)(l)(iv). AFFIRMED 8 Copy with citationCopy as parenthetical citation