Ex Parte Weber et alDownload PDFPatent Trial and Appeal BoardSep 26, 201613297214 (P.T.A.B. Sep. 26, 2016) Copy Citation UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 13/297,214 11/15/2011 24498 7590 09/28/2016 Robert D, Shedd, Patent Operations THOMSON Licensing LLC 4 Research Way 3rd Floor Princeton, NJ 08543 FIRST NAMED INVENTOR Barry Jay Weber 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 ATTORNEY DOCKET NO. CONFIRMATION NO. PUOOO l 26CONT1 9710 EXAMINER LAZARO, DAVID R ART UNIT PAPER NUMBER 2455 NOTIFICATION DATE DELIVERY MODE 09/28/2016 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): uspto@technicolor.com pat. verlangieri@technicolor.com russell. smith@technicolor.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte BARRY JAY WEBER and KERRY WAYNE CALVERT Appeal2015-006382 Application 13/297,2141 Technology Center 2400 Before ST. JOHN COURTENAY III, THU A. DANG, and LARRY J. HUME, Administrative Patent Judges. HUME, Administrative Patent Judge. DECISION ON APPEAL This is a decision on appeal under 35 U.S.C. § 134(a) of the Final Rejection of claim 22. Appellants have previously canceled claims 1-21. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. 1 According to Appellants, the real party in interest is THOMSON Licensing S.A. App. Br. 2. Appeal2015-006382 Application 13/297,214 STATEMENT OF THE CASE2 The Invention Appellants' claimed invention relates to "internet multimedia advertisement insertion architecture." Title. Exemplary Claim Claim 22, reproduced below, is representative of the subject matter on appeal (lettering and emphasis added to disputed limitations): 22. A method for processing broadcast multimedia content and advertisements to provide a composite program data stream including multimedia data content and user targeted advertisements to multiple different users comprising the steps of: receiving broadcast multimedia program content from multiple sources; [L 1] scheduling a time of insertion of a designated advertisement from a plurality of advertisements into selected broadcast multimedia program content; [L2] providing each user of a plurality of users with individualized composite program datastreams by inserting said designated advertisement into a selected program multimedia program content at a scheduled insertion time to form a composite data stream that the designated advertisement is selected by using user preference information corresponding to each of said user of a plurality of users based on prior user program selection history of selected programming content and a plurality of websites accessed by each of said user of said plurality of users. 2 Our decision relies upon Appellants' Appeal Brief ("App. Br.," filed Feb. 2, 2015); Examiner's Answer ("Ans.," mailed Apr. 4, 2015); Final Office Action ("Final Act.," mailed June 10, 2014); and the original Specification ("Spec.," filed Nov. 15, 2011). 2 Appeal2015-006382 Application 13/297,214 Prior Art The Examiner relies upon the following prior art as evidence in rejecting the claims on appeal: Monteiro et al. ("Monteiro") US 5,778,187 July 7, 1998 Hamano et al. ("Hamano") US 2002/0166127 Al Nov. 7, 2002 Rejections on Appeal R 1. Claim 22 stands rejected on the ground of nonstatutory obviousness-type double patenting ("OTDP") as being unpatentable over claims 1-14 of U.S. Patent No. 8,082,355. Final Act. 5. R2. Claim 22 stands rejected under 35 U.S.C. § 103(a) as being unpatentable over the combination of Monteiro and Hamano. Final Act. 3; Ans. 2. ISSUES AND ANALYSIS In reaching this decision, we consider all evidence presented and all arguments actually made by Appellants. We do not consider arguments which Appellants could have made but chose not to make in the Brief so that we deem any such arguments as waived. 37 C.F.R. § 41.37(c)(l)(iv). We disagree with Appellants' arguments with respect to claim 22, and we incorporate herein and adopt as our own: ( 1) the findings and reasons set forth by the Examiner in the action from which this appeal is taken, and (2) the reasons and rebuttals set forth in the Examiner's Answer in response to Appellants' arguments. We incorporate such findings, reasons, and rebuttals herein by reference unless otherwise noted. However, we highlight 3 Appeal2015-006382 Application I3/297,2 I4 and address specific findings and arguments regarding claim 22 for emphasis as follows. 1. Non-Statutory OTDP Rejection RI ofClaim 22 Appellants do not rebut or otherwise address this rejection in their Appeal Brief, and we note arguments not made are waived. See Hyatt v. Dudas, 55I F.3d I307, I3I4 (Fed. Cir 2008) ("When the appellant fails to contest a ground of rejection to the Board, section 1.I92(c)(7) [(now section 41.37(c)(l)(iv))] imposes no burden on the Board to consider the merits of that ground of rejection ... [T]he Board may treat any argument with respect to that ground of rejection as waived."). Therefore, we proforma sustain the Examiner's obviousness-type double patenting rejection RI of claim 22. 2. § I03(a) Rejection R2 of Claim 22 Appellants argue (Br. 3---6) the Examiner's rejection of claim 22 under 35 U.S.C. § I03(a) as being obvious over the combination of Monteiro and Hamano is in error. These contentions present us with the following issue: Did the Examiner err in finding the cited prior art combination teaches or suggests a method that includes, inter alia, limitations LI and L2, as recited in claim I? Analysis Appellants present the following two contentions: I) However, contrary to the Examiner's allegations, such passages of Monteiro mention nothing regarding actually 4 Appeal2015-006382 Application 13/297,214 App. Br. 5. "scheduling a time of insertion of a designated advertisement from a plurality of advertisements into selected broadcast multimedia program content", as claimed. 2) However, contrary to the Examiner's allegations, such passages mention nothing regarding "providing each user of a plurality of users with individualized composite program datastreams by inserting said designated advertisement into a selected program multimedia program content at a scheduled insertion time to form a composite data stream", as claimed. App. Br. 6. We are not persuaded by Appellants because, as our reviewing court has held, "the Board reasonably interpreted Rule 41.37 to require more substantive arguments in an appeal brief than a mere recitation of the claim elements and a naked assertion that the corresponding elements were not found in the prior art." Jn re Lovin, 652 F.3d 1349, 1357 (Fed. Cir. 2011). Appellants' assertions amount to unsupported attorney argument, and therefore we give them little weight. In re Geisler, 116 F.3d 1465, 1470 (Fed. Cir. 1997). Thus, we do not find Appellants' arguments to be persuasive. We note Appellants have not rebutted the Examiner's factual findings and legal conclusions of obviousness by filing a Reply Brief. Furthermore, we agree with the Examiner's finding that the combination of Monteiro and Hamano teaches or at least suggests Appellants' claimed method. In particular, we find the Examiner has mapped the contested claim term "scheduling a time of insertion," which is 5 Appeal2015-006382 Application 13/297,214 similarly recited in both limitations L 1 and L2 of claim 22, to the cited prior art. Final Act. 3; Ans. 4. Specifically, we agree with the Examiner's finding that Monteiro's integrated audio stream teaches or at least suggests the contested limitations "scheduling a time of insertion of a designated advertisement" and "inserting said designated advertisement into a selected program multimedia program content at a scheduled insertion time," as recited in claim 22. Id. We agree with the Examiner because Monteiro teaches commercial advertising is inserted in real-time at Playback/Control Workstations. Monteiro col. 4, 11. 32-38, see also col 7, 11. 60-65. This insertion of advertising produces an integrated audio stream that is then delivered to the Primary Servers. Id. We agree with the Examiner's broad but reasonable interpretation that real-time ad insertion, as claimed, is still time-oriented and therefore Monteiro teaches or at least suggests "scheduling a time of insertion." Ans. 3 (citing Decision in related case, Appeal 2009-006708, mailed Mar. 31, 2011, p. 6). We find the Examiner has construed the contested limitations using a broad but reasonable interpretation, and note Appellants have not cited to a definition of "scheduling a time of insertion" in the Specification that would preclude the Examiner's broader reading. We further agree with the Examiner's finding that Monteiro discloses advertising content is downloaded to a User in advance of receipt of regular audio programming. Final Act. 3; Monteiro col. 16, 11. 37--41. Specifically, we find Monteiro's non-real-time delivery of the advertising stream further teaches or at least suggests the contested limitation "scheduled insertion time." Id. at 4, Monteiro col. 8, 11. 14--25. Monteiro discloses the 6 Appeal2015-006382 Application 13/297,214 advertising stream "does not require real-time delivery" and "could be delivered to the User in advance of the regular programming, stored in a buffer in the User's computer and inserted into the stream of regular programming." Monteiro, col. 8, 11. 14--25. We find Monteiro's advance downloading and storing of advertising content, which is then inserted into the programming, teaches or at least suggests the disputed limitation "scheduled insertion time." Accordingly, based upon the findings above, on this record, we are not persuaded of error in the Examiner's reliance on the combined teachings and suggestions of the cited prior art combination to teach or suggest the disputed limitation of claim 22, nor do we find error in the Examiner's resulting legal conclusion of obviousness. Therefore, we sustain the Examiner's obviousness Rejection R2 of claim 22. CONCLUSIONS (1) The Examiner did not err with respect to OTDP Rejection RI of claim 22 over the cited art of record, and we sustain the rejection. (2) The Examiner did not err with respect to obviousness Rejection R2 of claim 22 under 35 U.S.C. § 103(a) over the cited prior art combination of record, and we sustain the rejection. DECISION We affirm the Examiner's decision rejecting claim 22. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a)(l )(iv). AFFIRMED 7 Copy with citationCopy as parenthetical citation