Ex Parte Vagnati

Patent Trial and Appeal Board

Jan 28, 2014

11828490 (P.T.A.B. Jan. 28, 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.
11/828,490 07/26/2007 Michelle L. Vagnati PD-207052 9427
20991 7590 01/29/2014
THE DIRECTV GROUP, INC.
PATENT DOCKET ADMINISTRATION
CA / LA1 / A109
2230 E. IMPERIAL HIGHWAY
EL SEGUNDO, CA 90245
EXAMINER
VU, NGOC K
ART UNIT PAPER NUMBER
2421
MAIL DATE DELIVERY MODE
01/29/2014 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 2011-008615
Application 11/828,490
Technology Center 2400
____________

Before MAHSHID D. SAADAT, ELENI MANTIS MERCADER,
and BRUCE R. WINSOR, Administrative Patent Judges.

SAADAT, Administrative Patent Judge.

DECISION ON APPEAL

Appeal 2011-008615
Application 11/828,490

2
Appellant appeals under 35 U.S.C. § 134(a) from a final rejection of
claims 1-28. We have jurisdiction under 35 U.S.C. § 6(b).
We affirm.

STATEMENT OF THE CASE
Appellant’s invention relates to a method and system for selecting
program content that is not yet available (see Spec., ¶¶ [0004] – [0006]).
Exemplary independent claim 1 reads as follows:
1. A method comprising:
receiving program guide data for linear channels at a user
device;
receiving future available non-linear content data at the
user device corresponding to future available non-linear
content, said program guide data different than the future
available non-linear content data;
storing the program guide data in the user device;
storing the future available non-linear content data in a
memory of the user device;
forming a future non-linear content selection;
storing the future non-linear content selection in a queue
of the user device until a predetermined time;
after the predetermined time, communicating a material
identification of the future non-linear content selection to a
content processing system; and
communicating the content corresponding to the material
identification to the user device.
Claims 1-10 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Klappert (US 2008/0155600 A1) and Cansler (US
2006/0156372 A1).
1

1
The Examiner has withdrawn the rejections of claims 1-28 under the
second paragraph of 35 U.S.C. § 112, and of claims 11-28 under 35 U.S.C.
§ 103(a) over Klapper and Cansler (Ans. 3).
Appeal 2011-008615
Application 11/828,490

3
ANALYSIS
We have reviewed the Examiner’s rejection in light of Appellant’s
contentions that the Examiner has erred. We disagree with Appellant’s
conclusions.
With respect to claim 1, Appellant does not dispute the teachings of
Klappert, but contends that the proposed combination of Klappert with
Cansler does not teach or suggest any programs “that are available in the
future and are non-linear (not broadcasted at a predetermined time and
date)” (App. Br. 8). Appellant specifically asserts that “[t]he queue in the
Cansler reference is a queue for content that is already available but is not
desired to be downloaded as of yet” (id.). Appellant further points to the
Examiner’s cited portions of Cansler in paragraphs 14, 17-19, 30, 32, and 39
and concludes that Cansler’s content “is available content and not future
available content as described in claim 1” (App. Br. 9).
In response to each of the arguments raised by Appellant, the
Examiner presents sufficient findings and responses (Ans. 4-7). We agree
with these findings and conclusions and adopt them as our own.
As found by the Examiner (Ans. 7), the user interface in Figure 4 of
Cansler shows a list of downloaded movies as well as “a list of movies in
queue for downloading with expiration dates.” Therefore, we agree with the
Examiner’s conclusion that the set top box of Cansler “receives and stores
information/data including available time for downloading content for a
predetermined time period, e.g., present time to expiration data” (Ans. 7). In
other words, the data about the claimed “future available non-linear content”
is received at the user device in the form of the movies available for future
downloading between the present time and the expiration date.
Appeal 2011-008615
Application 11/828,490

4
Contrary to Appellant’s assertion (Reply Br. 2), the recitation of the
“future available non-linear content” does not require the content to be
unavailable at the present time. The claim merely recites receiving data or
information regarding non-linear content that is available sometime in the
future, which is shown by Cansler as the time between the present time and
the expiration date (see Ans. 7). This is also consistent with Appellant’s
description of the disputed claim step in paragraph 97 of the Specification as
“[t]he future available content may also include associated data such as the
available time or time window.”
Regarding claim 2, Appellant presents similar argument that
Cansler’s content is already available rather than in a predetermined time, as
recited in claim 2 (App. Br. 10). For similar reasons discussed above, we
also agree with the Examiner’s findings and analysis (Ans. 7).
2

CONCLUSION
On the record before us, we conclude that, because the references
teach or suggest all the claim limitations, the Examiner has not erred in
rejecting claims 1-10.

2
With respect to claim 11, Appellant relies on the same reasons stated for
the patentability of independent claim 1 and indicates claims 12-28 stand or
fall with claim 11 (see App. Br. 10-11). However, we do not find any
substantive difference between claim 11, which the Examiner indicated as
allowable, and rejected claim 2. Therefore, based on our analysis regarding
claims 1 and 2 above and sustaining the rejection of claims 1-10, we invite
the Examiner to re-evaluate the allowability of claims 11-28.
Appeal 2011-008615
Application 11/828,490

5
DECISION
The Examiner’s decision rejecting claims 1-10 is affirmed.
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

kis