Ex Parte TealDownload PDFPatent Trial and Appeal BoardOct 14, 201412138688 (P.T.A.B. Oct. 14, 2014) Copy Citation UNITED STATES PATENT AND TRADEMARK OFFICE ________________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ________________ Ex parte MICHAEL D. TEAL ________________ Appeal 2012-005959 Application 12/138,688 Technology Center 2100 ________________ Before ROBERT E. NAPPI, JASON V. MORGAN, and NORMAN H. BEAMER, Administrative Patent Judges. BEAMER, Administrative Patent Judge. DECISION ON APPEAL Appellant1 seeks our review under 35 U.S.C. § 134(a) of the Examiner’s final decision rejecting claims 1, 2, 5–12 and 15–24. Claims 3, 4, 13 and 14 have been canceled. We have jurisdiction under 35 U.S.C. § 6(b). We affirm-in-part. 1 Appellant identifies Sony Ericsson Mobile Communications AG as the real party in interest. (App. Br. 2.) Appeal 2012-005959 Application 12/138,688 2 STATEMENT OF THE CASE The present invention is directed to automatically selecting a plurality of media for rendering on an electronic device. See Abstract. Claim 1 is illustrative of the invention and is reproduced below: 1. A computer implemented method for automatically selecting a plurality of media for rendering on an electronic device, comprising: identifying at least first and second characteristics of media to be selected, said first and second characteristics being different from one another; selecting a first media corresponding to the first characteristic; selecting an interval over which a trend from the first characteristic to the second characteristic is to occur; selecting, using a processor, at least one intermediate media based on a trend from the first characteristic to the second characteristic, said selecting including applying a weighting factor corresponding to a current location within the specified interval and the identified first and second characteristics. Appellant appeals the rejection by the Examiner of claims 1, 2, 5–12 and 15–24 under 35 U.S.C. § 102(b) as being anticipated by Bill (US 2004/ 0243592 A1). (Ans. 4–7.) ANALYSIS The Examiner has provided a comprehensive response to Appellant’s arguments. We have reviewed the Examiner’s response and the Examiner’s action from which this appeal was taken, and agree in part with the Examiner’s findings and conclusions. We add the following for emphasis. Appeal 2012-005959 Application 12/138,688 3 35 U.S.C. § 102(b) — Claims 1, 11 and 22 We concur with the Examiner’s finding that Bill discloses the subject matter of independent claims 1, 11, and 22. Appellant argues that Bill does not disclose the limitations of “selecting an interval over which a trend from the first characteristic to the second characteristic is to occur” and “applying a weighting factor corresponding to a current location within the specified interval and the identified first and second characteristics.” (App. Br. 7–16.) We are not persuaded by Appellant’s arguments. We agree with the Examiner’s findings that Bill discloses both of these elements. (Ans. 7–13.) In particular, Figure 2D and the accompanying description disclose how “mood transitions may be planned so that the mood may be changed from a current mood originating point to a mood destination.” (Bill ¶ 42.) (See also Figure 6.) The current point and destination point may correspond, for example, to particular songs on audio tracks. (Bill ¶¶ 20, 39.) The transition consists of selecting “one or more intermediary tracks . . . to successfully transition . . . to the mood destination point.” (Bill ¶ 43.) Bill specifically provides that “one, two, three, or more intermediary tracks may be used to successfully transition from the mood originating point . . . to the mood destination point . . . .” (Bill ¶ 45.) In addition, the transition consists of successive tracks, each of which falls within a given “mood range of the current track.” (Bill ¶ 41.) Given a particular selected track, the next track “lies within the boundaries of the mood spectrum.” (Bill ¶ 64.) In one embodiment, the next track is “selected based on identifying content that . . . is the furthest … away within the spectrum. . . .” (Bill ¶ 67.) Each step in the transition is “calculated from the mood originating point to the mood destination.” (Bill ¶ 73.) The result “generate[s] the playlist that transitions Appeal 2012-005959 Application 12/138,688 4 the user from the originating piece of content to the destination.” (Bill ¶ 72.) (See also Bill ¶¶ 3, 6, 71, 76.) Appellant argues that the Examiner’s reliance on the playlist generated in Bill as the claimed interval is in error because the playlist is the “end result,” and that “such alleged interval cannot somehow form the basis for creating itself.” (App. Br. 11.) We see no inconsistency in the Examiner’s findings. As discussed above, the desired playlist is generated as a result of a user selecting a beginning point and an endpoint, and selecting a desired mood transition range. From those selections, each intermediary track is calculated, resulting in a number of tracks (e.g., “one, two, three, or more intermediary tracks,” Bill ¶ 45). By selecting a beginning, an end and a transition range, an interval is thereby unequivocally selected. Appellant also argues that Bill does not disclose “applying a weighting factor corresponding to a current location within the specified interval.” (App. Br. 14–15.) However, the iterative use of a mood range to successively calculate each intermediate track takes into account the current location within the interval. As disclosed in the above-cited discussion of Bill Figures 2D and 6, each calculation of an intermediate track advances along the interval, away from the origination point and towards the destination point by the selected range. The calculation disclosed in Bill assigns weight to the values of the starting and ending points according to the position of the given intermediate point along the interval. This is the same weighting process described in the Specification. (Spec. 8, ll. 19–27.) Appeal 2012-005959 Application 12/138,688 5 Accordingly, we are unpersuaded that the Examiner’s findings that Bill discloses the limitations of claims 1, 11, and 22 were in error, and we sustain those rejections. 35 U.S.C. § 102(b) — Claims 5 and 15 Appellant argues that the Examiner’s rejection of dependent claims 5 and 15 are in error for the same reasons as argued with respect to claims 1 and 11, and in addition asserts that Bill does not disclose the requirement that “the interval is based on time period or on a number of media to be selected.” (App. Br. 17–18.) Although, as discussed above, we agree with the Examiner’s findings to the extent that Bill discloses the limitations of claims 1 and 11, from which claims 5 and 15 depend, the Examiner’s findings do not show that Bill discloses that the interval is based on time period or on a number of media to be selected. Instead, the Examiner’s citations (Ans. 5, 13–14) show that Bill defines an interval in terms of a “mood transition threshold” (see, e.g., Bill ¶ 3.) Accordingly, we do not sustain the Examiner’s rejection of claims 5 and 15. 35 U.S.C. § 102(b) — Claims 9 and 19 Appellant also argues that the Examiner’s rejection of dependent claims 9 and 19 are in error for the same reasons as argued with respect to claims 1 and 11, and in addition asserts that Bill does not disclose the requirement that “identifying at least first and second characteristics includes: selecting first and second reference media; and determining the first and second characteristics based on characteristics of the first and second reference media, respectively.” (App. Br. 18–20.) We agree with Appeal 2012-005959 Application 12/138,688 6 the Examiner that Bill discloses the selection of particular media (e.g., songs) as the starting and ending points of a transition, and determining the first and second characteristics accordingly. (Ans. 14; see Bill ¶¶ 3, 39, 71.) In particular, Bill specifically discloses identifying a mood originating point (i.e., a first characteristic) from a present track (a first reference media) and a mood destination (a second characteristic) from an end track (a second reference media). Bill ¶ 3. Accordingly, we are unpersuaded that the Examiner’s findings that Bill discloses the limitations of claims 9 and 19 were in error, and we sustain those rejections. 35 U.S.C. § 102(b) — Claims 23 and 24 Appellant further argues that the Examiner’s rejection of dependent claims 23 and 24 are in error for the same reasons as argued with respect to claims 1 and 11, and in addition asserts that Bill does not disclose the requirement of “determining a new weighting factor when the selected media does not satisfy the specified interval.” (App. Br. 20–23.) We agree with the Examiner that Bill discloses that a new weighting factor is determined when the selected media does not satisfy the specified interval. (Ans. 7, 14–15.) In particular, as described in connection with Figure 2D, “[a]fter the intermediary track 290 is selected, a second intermediary track 295 is added to the playlist to move the current mood indicator closer to the mood destination 280.” (Id. at 14–15; see Bill ¶ 44.) That is, because intermediary track 290 does not satisfy the specified interval (it is not mood destination 280), a new weighing factor, the mood indicator resulting from adding second intermediary track 295, is determined. Appeal 2012-005959 Application 12/138,688 7 Accordingly, we are unpersuaded that the Examiner’s findings that Bill discloses the limitations of claims 23 and 24 were in error, and we sustain those rejections. CONCLUSION For the reasons set forth above, Appellant’s arguments do not persuade us of error in the rejection of claims 1, 9, 11, 19, and 22–24. However, we are persuaded that the rejection of claims 5 and 15 was in error. Appellant presents no separate arguments as to dependent claims 2, 6–8, 10, 12, 16–18, or 20–21 as presented on appeal, and therefore any arguments are waived. See 37 C.F.R. § 41.37(c)(1)(vii) (2010). DECISION The decision of the Examiner to reject claims 1, 2, 6–12 and 16–24 is affirmed. The rejection of claims 5 and 15 is reversed. 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-IN-PART Klh Copy with citationCopy as parenthetical citation