Ex Parte Werner

Board of Patent Appeals and Interferences

Jan 23, 2009

09731415 (B.P.A.I. Jan. 23, 2009)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte WILLIAM B. WERNER
____________

Appeal 2008-4837
Application 09/731,415
Technology Center 2400
____________

Decided: January 23, 2009
____________

Before KENNETH W. HAIRSTON, JOSEPH F. RUGGIERO, and KARL
D. EASTHOM, Administrative Patent Judges.

RUGGIERO, Administrative Patent Judge.

DECISION ON APPEAL
STATEMENT OF THE CASE
Appellant appeals under 35 U.S.C. § 134 from the Final Rejection of
claims 1-4, 6-13, and 15-19. Claims 5, 14, and 20 have been canceled. We
have jurisdiction under 35 U.S.C. § 6(b).
We affirm.
Appeal 2008-4837
Application 09/731,415

Appellant’s invention relates to the scheduling and controlling of the
presentation of data in which a plurality of data presentation units operate to
present a plurality of features which are stored in a data library. A server,
which is coupled to the data library, operates to select features to present at
selected times. The server also determines restrictions applicable to the
selected features including data presentation unit attributes which are used to
present the selected features. (Spec. 3:6-22).
Claim 1 is illustrative of the invention and reads as follows:

1. A system for scheduling and controlling presentation of data,
comprising:
a data library operable to store a plurality of features and promotional
data;
a plurality of data presentation units coupled to the data library, each
disposed at a corresponding one of a plurality of locations, each data
presentation unit operable to present at least one of the plurality of features
according to attributes of the data presentation unit related to such
presentation; and
a server coupled to the data library, located remotely from each of the
plurality of locations, and operable to
select at least one of a desired number of features to present at a
selected one of a desired plurality of times;
determine restrictions applicable to the selected feature, the
restrictions comprising restrictions indicative of data presentation unit
attributes useful for the presentation of the selected feature;
select applicable promotional data to be presented with the
selected feature;
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select one of the plurality of locations at which to present the
selected feature based on a comparison of the restrictions applicable to the
selected feature and the attributes of the data presentation unit at the selected
location;
automatically provide the selected feature and promotional data
from the data library to at least one of the plurality of data presentation units
at the selected location at approximately the selected one of the desired
plurality of times; and
control at least one facility element within the selected location
at the selected one of the desired plurality of times.

The Examiner’s Answer cites the following prior art references:1
Yiu US 6,008,777 Dec. 28, 1999
(filed Mar. 7, 1997)
Rabowsky US 6,141,530 Oct. 31, 2000
(filed Jun. 15, 1998)
Srinivasan US 2001/0023436 A1 Sep. 20, 2001
(filed Jan. 22, 1999)
Mercs US 6,384,893 B1 May 7, 2002
(filed Dec. 11, 1998)

Amy Smith (Smith), “Naked City: Off the Desk,” The Austin Chronicle,
http://www.austinchronicle.com/gyrobase/Issue/story?oid=oid:75143, 1-3
(December 17, 1999).

Claims 1-4, 6-13, and 15-19, all of the appealed claims, stand rejected
under 35 U.S.C. § 103(a) as being unpatentable over Rabowsky in view of
Mercs.

1 The Yiu, Srinivasan, and Smith references are not part of the Examiner’s
stated grounds of rejection but, rather, are cited as evidence in support of the
rejection.
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Rather than reiterate the arguments of Appellant and the Examiner,
reference is made to the Briefs and Answer for the respective details. Only
those arguments actually made by Appellant have been considered in this
decision. Arguments which Appellant could have made but chose not to
make in the Briefs have not been considered and are deemed to be waived
[see 37 C.F.R. § 41.37(c)(1)(vii)].

ISSUE
Under 35 U.S.C. § 103(a), with respect to appealed claims 1-4, 6-13,
and 15-19, would one of ordinary skill in the art at the time of the invention
have found it obvious to combine Rabowsky and Mercs to render the
claimed invention unpatentable?
The pivotal issue before us is whether the Appellant has demonstrated
that the Examiner erred in interpreting the authorization characteristic of a
screen room location in Rabowsky as a screen room “attribute” which is
compared to restrictions in a data presentation feature to determine locations
in which to present the feature.

FINDINGS OF FACT
The relevant facts are:
1. Rabowsky discloses a motion picture delivery system having a
Headend system 10 and a Theater system 60 and including a data library in
the form of storage devices for storing motion picture cinema files.
(Rabowsky, Figures 1 and 2, col. 2, ll. 25-47, col. 12, ll. 15-16 and 25-29).
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2. Rabowsky also discloses (col. 11, ll. 54-60) multiple secure
projector and screen room systems for presenting a plurality of cinema
features in which screen display features such as size, aspect ratio, and
screen reflectivity must conform to the projector output characteristics.
3. Rabowsky further discloses (Figures 1 and 2, col. 12, ll. 8-16)
that Theater system 60 includes an automation/scheduling system 80 which
controls the presentation of scheduled cinema features at scheduled times in
scheduled screen room locations.
4. Rabowsky also discloses (col. 12, ll. 17-28) that the theater
operator can modify the presentation schedule by changing play times and/or
screen locations subject to notification and approval of a DMS (Distribution
and Management System).
5. Mercs discloses an automated movie display control system in
which a plurality of digital cinema processors (DCPs) function to control
display facility elements such as lights and curtains. (Mercs, Figures 1 and
2, col. 5, ll. 20-45).

PRINCIPLES OF LAW
In rejecting claims under 35 U.S.C. § 103, it is incumbent upon the
Examiner to establish a factual basis to support the legal conclusion of
obviousness. See In re Fine, 837 F.2d 1071, 1073 (Fed. Cir. 1988). In so
doing, the Examiner must make the factual determinations set forth in
Graham v. John Deere Co., 383 U.S. 1, 17 (1966). “[T]he examiner bears
the initial burden, on review of the prior art or on any other ground, of
presenting a prima facie case of unpatentability.” In re Oetiker, 977 F.2d
1443, 1445 (Fed. Cir. 1992). Furthermore,
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there must be some articulated reasoning with some
rational underpinning to support the legal conclusion of
obviousness’ . . . [H]owever, the analysis need not seek
out precise teachings directed to the specific subject
matter of the challenged claim, for a court can take
account of the inferences and creative steps that a person
of ordinary skill in the art would employ.

KSR Int’l Co. v. Teleflex Inc., 127 S. Ct. 1727, 1741 (2007) (quoting
In re Kahn, 441 F.3d 977, 988 (Fed. Cir. 2006)).

ANALYSIS
The Rabowsky reference
With respect to the Examiner’s obviousness rejection of independent
claims 1, 8, and 15, Appellant’s arguments in response assert a failure by the
Examiner to establish a prima facie case of obviousness since all of the
claimed limitations are not taught or suggested by the applied Rabowsky and
Mercs references. Appellant’s arguments focus on the alleged deficiency of
Rabowsky in disclosing the claimed feature, present in each of the appealed
independent claims 1, 8, and 15, of selecting locations to present selected
data feature presentations based on a comparison of the restrictions
applicable to the selected feature and the attributes of the data presentation
unit at the selected location.
According to Appellant (App. Br. 7-9; Reply Br. 2-4), to whatever
extent Rabowsky’s disclosed projector and screen attributes such as size,
aspect ratio, and screen reflectivity (col. 11, ll. 54-60) may be related to
cinema feature presentation, any such attributes have nothing to do with the
selection of a particular location for presentation of a selected feature. In
Appellant’s view, any restrictions that are considered by Rabowsky (col. 12,
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ll. 8-28) in selecting projector locations in which to present a feature may
include a predetermined playback schedule transmitted from the Headend 10
to the Theater 60, but any such restrictions are, at best, contractual
restrictions which are not related to the attributes of the projector system.
We do not find Appellant’s argument to be persuasive in convincing
us of any error in the Examiner’s stated position. We agree with the
Examiner (Ans. 9-10) that the authorization characteristic of each screen
room in Rabowsky can be reasonably interpreted as an “attribute” of the
screen room. To whatever extent Appellant is relying upon specific
projector system attributes such as the disclosed exemplary sound system
and aspect ratio features, any such particular attributes are not set forth in the
appealed claims. In our view, Appellant’s arguments improperly attempt to
narrow the scope of the claims by implicitly adding disclosed limitations
which have no basis in the claim. See In re Morris, 127 F.3d 1048, 1054-55
(Fed. Cir. 1997).
We further agree with the Examiner (id.) that the disclosure at column
12, lines 8-28 of Rabowsky supports the conclusion that the feature playback
schedule provided to the theater operator ensures that particular cinema
features are presented only on authorized screen rooms by comparing the
restrictions in the cinema file with the screen room authorization attribute.
That the playback schedule in Rabowsky includes restrictions on which
screen rooms are authorized to show which features is apparent since the
modification of the schedule requires the notification and/or approval of the
DMS (Distribution Management System). (Rabowsky, col. 12, ll. 18-25).
Appellant further contends (Reply Br. 4-6) that, even if it is assumed
that the Examiner is correct in considering screen room authorization as an
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“attribute,” Rabowsky still does not satisfy the requirements of the appealed
claims which require a server which operates to select locations to display a
feature based on a comparison of the feature restrictions and the attributes of
the data representation unit at the selected location. We do not find
Appellant’s arguments to be persuasive in showing any error in the
Examiner’s position.
We note that Appellant correctly describes the operation of the system
of Rabowsky as including the transmission of a playback schedule, which
includes authorized playback times and screen locations, from the Headend
10 to the Theater 60. It is, however, the automation scheduling system 80,
i.e., a server, within the theater system and located remote from the screen
rooms that schedules the playbacks and provides the necessary controls to
play the cinema features at the scheduled times. Further, as alluded to
earlier in our discussion, since the change of a screen room location for a
particular feature requires notification and/or approval, it is apparent to us
that an ordinarily skilled artisan would recognize that a comparison of
feature restrictions and screen room authorization is present in Rabowsky.

The Mercs reference
The Examiner has applied the teachings of Mercs to Rabowsky to
address the claimed feature of controlling a facility element (e.g., lights,
curtains, etc.) during a feature presentation. Appellant’s arguments (App.
Br. 9, 12, and 14; Reply Br. 6, 8, and 10) attack the Examiner’s reliance on
Mercs by focusing on the lack of any disclosure in Mercs of a comparison of
feature restrictions to presentation unit attributes as presently claimed.
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We find such contention to be unpersuasive since the Examiner has
relied upon Rabowsky, not Mercs, for a teaching of the comparison of
features restrictions with screen room authorization attributes. It is apparent
from the Examiner’s line of reasoning in the Answer that the basis for the
obviousness rejection is the combination of Rabowsky and Mercs. One
cannot show nonobviousness by attacking references individually where the
rejections are based on combinations of references. In re Keller, 642 F. 2d
413, 425 (CCPA 1981); In re Merck & Co., Inc., 800 F. 2d 1091, 1096 (Fed.
Cir. 1986).

CONCLUSION OF LAW
Based on the findings of facts and analysis above, we conclude that
Appellant has not shown that the Examiner erred in rejecting independent
claims 1, 8, and 15, nor dependent claims 2-4, 6, 7, 9-13, and 16-19 which
are not separately argued, for obviousness under 35 U.S.C. § 103.

DECISION
The Examiner’s 35 U.S.C. § 103(a) rejection of claims 1-4, 6-13, and
15-19, all of the appealed claims, is affirmed.
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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

ELD

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