11828486 (P.T.A.B. Jun. 30, 2014)

Ex Parte Vagnati

Patent Trial and Appeal BoardJun 30, 2014

11828486 (P.T.A.B. Jun. 30, 2014)

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. 11/828,486 07/26/2007 Michelle L. Vagnati PD-207051 9420 20991 7590 06/30/2014 THE DIRECTV GROUP, INC. PATENT DOCKET ADMINISTRATION CA / LA1 / A109 2230 E. IMPERIAL HIGHWAY EL SEGUNDO, CA 90245 EXAMINER PENG, HSIUNGFEI ART UNIT PAPER NUMBER 2426 MAIL DATE DELIVERY MODE 06/30/2014 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 MICHELLE L. VAGNATI ____________ Appeal 2011-011911 Application 11/828,486 Technology Center 2400 ____________ Before ELENI MANTIS MERCADER, CARL W. WHITEHEAD JR., and DANIEL N. FISHMAN, Administrative Patent Judges. MANTIS MERCADER, Administrative Patent Judge. DECISION ON REQUEST FOR REHEARING Appeal 2011-011911 Application 11/828,486 2 Appellant requested a rehearing of our Decision dated March 31, 2014, wherein we affirmed the rejections of claims 1-16. Appellant contends that while paragraph 10 of Nakano states that “[t]he microprocessor correlates channel numbers with virtual channels,” Nakano is silent as to the correlation including “assigning virtual channel numbers for respective virtual channels at a content processing system so that the virtual channel numbers each have a same fixed predetermined relationship to the respective linear channel number assignment,” as required in claim 1 (Req. Reh’g 3-4 (emphasis added) (emphasis in original and internal quotation marks omitted)). More specifically, Appellant argues that Nakano is silent as to the correlation resulting in each of Nakano’s virtual channel numbers having the same fixed predetermined relationship to the linear channel numbers, respectively (Req. Reh’g 4). We do not find Appellant’s argument to be persuasive. As we previously stated in our Opinion, Nakano teaches, and Appellant agrees Nakano teaches (App. Br. 5; Req. Reh’g 2), a microprocessor that correlates channel numbers with virtual channels (Nakano ¶ [0010]). The correlation of a channel number to a virtual number by itself denotes a fixed relationship of the virtual channel number and the linear channel number. In other words, if there is a correlation, it necessarily means that the relationship between the two channels is not changing, and thus, there is a fixed relationship. Otherwise, it would be impossible to correlate the two types of channels. Thus, Nakano teaches a “fixed predetermined relationship” by correlating each virtual channel with its respective real channel. With respect to the “same fixed predetermined relationship,” as recited in claim 1 (emphasis added), the Examiner cited paragraph 19 of Appeal 2011-011911 Application 11/828,486 3 Nakano, wherein each of the virtual channels is given a number at the end of sequence of available TV channels. The same fixed predetermined relationship applies for each of the virtual channels since each one of the channels is assigned a number at the end of the real sequence of available real channels. Claim 1 does not recite that the same “number” is assigned to each of the channels, but rather, that the virtual channel numbers each have a same fixed predetermined relationship to the respective linear channel number assignment. But even if, assuming arguendo, Appellant did claim the same number added to each of the virtual channels (i.e., HBO channel 200 vs. HBO virtual channel 1,200; Cinemax channel 205 vs. Cinemax channel 1,205) as opposed to a same fixed predetermined relationship (i.e., wherein each real channel is correlated with its respective virtual channel and each virtual channel is assigned a number after the sequence of real channels) such distinction differs only as to the type of information added to the real number. The type of information added constitutes non-functional descriptive material. The Examiner need not give patentable weight to descriptive material absent a new and unobvious functional relationship between the descriptive material and the substrate. See In re Lowry, 32 F.3d 1579, 1583-84 (Fed. Cir. 1994); In re Ngai, 367 F.3d 1336, 1338 (Fed. Cir. 2004), and the Board’s final decision in Ex parte Curry, 84 USPQ2d 1272 (BPAI 2005) (informative opinion), aff’d, No. 06-1003 (Fed. Cir. June 12, 2006) (Rule 36). Appeal 2011-011911 Application 11/828,486 4 DECISION Appellant’s Request for Rehearing is granted to the extent that the Decision was reconsidered, but is denied with respect to modifying the Decision. 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). REQUEST FOR REHEARING DENIED msc