Ex Parte Wooden

Patent Trial and Appeal Board

Feb 6, 2018

12568670 (P.T.A.B. Feb. 6, 2018)

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.
12/568,670 09/29/2009 Richard D. Wooden 140-DDG-06-2009 6864
86548 7590
Garlick & Markison (IH)
106 E. 6th Street, Suite 900
Austin, TX 78701
EXAMINER
NGUYEN, LINH T
ART UNIT PAPER NUMBER
2459
NOTIFICATION DATE DELIVERY MODE
02/08/2018 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):
MMurdock@ TEX ASPATENTS .COM
bpierotti @ texaspatents .com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte RICHARD D. WOODEN
Appeal 2017-009829
Application 12/568,670
Technology Center 2400
Before ST. JOHN COURTENAY III, LARRY J. HUME, and
JOYCE CRAIG, Administrative Patent Judges.
COURTENAY, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
This is an appeal under 35 U.S.C. § 134(a) from the Examiner’s Non-
Final Rejection of claims 1-20 and 22-26. Claim 21 is cancelled. We have
jurisdiction under 35 U.S.C. § 6(b).
We affirm.
Invention
The disclosed and claimed invention on appeal relates to “a system
and method for providing internet users with a set of preferences for
streaming audio media in order to enhance their listening experiences.”
(Spec. 1).
Appeal 2017-009829
Application 12/568,670
Representative Claim
1. A method of personalizing streaming media content,
comprising:
[LI] obtaining, at a client-side media player implemented
on a user computing device, streaming media listener input
specifying respective play amounts on per stream source basis,
wherein each of the respective play amounts indicates a
corresponding portion of an expected media streaming period to
be allocated to a respective one of a plurality of different stream
sources;
[L2] allocating each of the play amounts to the plurality
of different stream sources, responsive to the media listener
input;
[L3] at the client-side media player, automatically
sequencing the plurality of different stream sources to generate
a combined media output by switching among the plurality of
different stream sources in accordance with the allocating; and
at the client-side media player, during each instance of
the expected media streaming period, outputting the combined
media output to an output device.
(Contested limitations LI, L2, and L3 are emphasized).
Rejections
A. Claims 1-61, 8-13, 15-20, 22, and 25, are rejected under pre-AIA
35 U.S.C. § 103(a) as being obvious over the combined teachings
and suggestions of Krikorian et. al. (“Krikorian”, US 7,668,936
Bl; Feb. 23, 2010) and Burgard et. al. (“Burgard”, US
2009/0319574 Al; Dec. 24, 2009).
1 We have corrected the Examiner’s rejection A heading (non-final office
Act. 7) to be consistent with the claims (1-6, 8-13, 15-20, 22, and 25)
actually rejected under the heading. (See non-final Act. 7-17).
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Application 12/568,670
B. Claims 7, 14, 23, 24, and 26 are rejected under pre-AIA 35 U.S.C.
§ 103(a) as being obvious over the combined teachings and
suggestions of Krikorian, Burgard, and Murray et. al. (“Murray”,
US 2007/0186006 Al; Aug. 9, 2007).
Grouping of Claims
Based on Appellant’s arguments in the principal Brief, we decide the
appeal of claims 1, 2, 4, 6, 8, 9, 11, 13, 15, 16, 18, 20, 22, and 25, rejected
under rejection A, on the basis of independent claim 1. See 37 C.F.R.
§ 41.37(c)(l)(iv). We address separately argued claims 3, 5, 10, 12, 17, and
19, infra. We decide the appeal of all claims rejected under rejection B,
separately, infra. To the extent Appellant has not advanced separate,
substantive arguments for the remaining claims on appeal, such arguments
are considered waived. See 37 C.F.R. § 41.37(c)(l)(iv).
ANALYSIS
We have considered all of Appellant’s arguments and any evidence
presented. We disagree with Appellant’s arguments, which we address in
our analysis below.
Rejection of Independent Claim 1 under 35 U.S.C. § 103(a)
Appellant contests limitation LI (in particular, “specifying play
amounts on a per stream basis”) as not being taught in the sections in
Krikorian cited by the Examiner. (App. Br. 7). Appellant specifically
argues Krikorian’s types or categories of music are not “streaming sources.”
(App. Br. 7-8).
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Application 12/568,670
We are not persuaded by Appellant’s contentions because we find the
disputed claim term “stream source” is taught or at least suggested by the
cited combination of references. (Claim 1). In particular, we find
Krikorian’s web server that delivers user selections using streaming audio
and streaming video, teaches “streaming sources.” (Krikorian, col. 11,11.
24-25) (See Krikorian, col. 11 “streaming audio”).2 We find Krikorian’s
web server that delivers streaming media files for output, as recited in
Krikorian’ claim 8 (col. 13), also teaches “streaming sources.” We note the
Burgard reference, also relied upon by the Examiner in rejecting claim 1,
teaches “streaming” audio and/or video content, (i.e., Burgard, Abst., ^[11,
12, 16, 34,35,40,41,47).
Appellant further contends: “The [Ejxaminer’s rejection is based on
the premise that allocating play amounts to particular genres is no different
than allocating play amounts to particular sources — but allocation to
different genres is not the same thing as allocation to different stream
sources.” (App. Br. 8).
We are not persuaded by Appellant’s contention because Krikorian’s
box 284 (Fig. 7) depicts allocating a percentage to a selection of a music
genre, which we find at least suggests allocating percentages to a selection
of music sources. See n.2, infra. Furthermore, we find Krikorian’s
executable files, which allocate percentages to the plurality of predetermined
2 Our reviewing court guides: “‘the question under [35 U.S.C. § 103] is not
merely what the references expressly teach but what they would have
suggested to one of ordinary skill in the art at the time the invention was
made.’” Merck & Co. v. Biocraft Laboratories, Inc., 874 F.2d 804, 807
(Fed. Cir. 1989), cert, denied, 493 U.S. 975 (1989) (emphasis added); see
also MPEP § 2123 .
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Application 12/568,670
collections, teach or at least suggest “different stream sources.” (Krikorian
col 2,11. 34-39). We also agree with the Examiner’s finding that Burgard’s
teaching of assigning play times and frequencies for each content piece
teaches or suggests contested limitation L2. (Ans. 7-8, citing Burgard ^ 68).
Appellants further contend the cited references do “not teach or
suggest sequencing multiple different stream sources by switching among
the stream sources based on the allocation amount.” (App. Br. 9). See
limitation L3 (Claim 1).
However, the Examiner finds Krikorian’s system, which allows a user
to select a playback time percentage based upon the source sub-library,
teaches or at least suggests “switching among the plurality of different
stream sources.” (Ans. 5, citing Krikorian, Fig. 9).
Burgard further buttresses the Examiner’s findings regarding
Krikorian. (Id.). We find Burgard’s custom programming, in which the user
selects the content and the time each selected content runs, teaches or at least
suggests the disputed limitation “switching among the plurality of different
stream sources in accordance with the allocating.” (Burgard, 40, 44).
To the extent the user selection in the cited references may not
“automatically” sequence, as claimed, it is well-settled that merely providing
an automatic means to replace manual activity to accomplish the same result
is an obvious improvement. See In re Venner, 262 F.2d 91, 95 (CCPA
1958). Nor has Appellant shown that automatically sequencing different
stream sources would have been uniquely challenging or otherwise beyond
the level of skill possessed by ordinarily skilled artisans. See Leapfrog
Enters., Inc. v. Fisher-Price, Inc., 485 F.3d 1157, 1162 (Fed. Cir. 2007).
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For at least the aforementioned reasons, and on this record, we are not
persuaded by Appellant’s arguments alleging the proffered combination of
references does not teach or suggest contested limitations LI, L2, and L3,
within the meaning of representative claim l.3
We find a preponderance of the evidence supports the Examiner’s
underlying findings and ultimate legal conclusion of obviousness. (Non-
Final Act. 4-6, Ans. 2-9). Remaining claims 2, 4, 6, 8, 9, 11, 13, 15, 16, 18,
20, 22 (discussed infra), and 25, also rejected under rejection A, fall with
representative claim 1. See Grouping of Claims, supra.
Rejection A of Independent Claim 22 under 35 U.S.C. § 103(a)
Appellant does not advance a substantive argument regarding claim
22. (App. Br. 10). Arguments not made are waived. See 37 C.F.R.
§ 41.37(c)(l)(iv). Therefore, we sustain the Examiner’s rejection of
claim 22.
Rejection A of Dependent Claims 3, 10 and 17 under 35 U.S.C. § 103(a)
Appellant contends:
The appellant’s claims explicitly recite selecting a particular
stream-source for increased or decreased play out. Even if
Krikorian allows selecting playout of a particular media file for
increased or decreased playout, as asserted by the examiner,
changing the frequency of playout of a particular media file
does not teach or suggest changing the amount of playout time
3 We give the contested claim limitations the broadest reasonable
interpretation consistent with the Specification. See In re Morris, 127 F.3d
1048, 1054 (Fed. Cir. 1997). Because “applicants may amend claims to
narrow their scope, a broad construction during prosecution creates no
unfairness to the applicant or patentee.” In re ICON Health and Fitness,
Inc., 496 F.3d 1374, 1379 (Fed. Cir. 2007) (citation omitted).
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allocated to a particular stream source, as required by
appellant’s claims. Another difference between Krikorian’s
disclosure and the appellant’s claims is that Krikorian’s
alteration of the playout frequency of a particular media item is
not based on selection of a stream source, and the appellants
claims require selection of a stream source; the claims do not
recite selection of a media item.
(App. Br. 10).
The Examiner finds Krikorian’s system that increases or decreases the
chance of digital media files being played teaches or at least suggests the
disputed limitation “adjusting . . . one of the plurality of different stream
sources for increased or decreased play.” (Ans. 10, citing Krikorian, col. 2,
11. 39-43). We agree with the Examiner’s finding, because increasing or
decreasing the probability that a media file will be played alters the
frequency it is played and thus teaches or at least suggests the disputed
limitation. (Krikorian, col. 2, 39-43). (We have addressed Appellant’s
arguments regarding “stream source” above.)
For at least the aforementioned reasons, on this record, and based
upon a preponderance of the evidence, we are not persuaded by Appellant’s
arguments regarding claims 3,10 and 17. Therefore, we sustain the
Examiner’s rejection A of claims 3, 10 and 17.
Rejection A of Dependent Claims 5, 12 and 19 under 35 U.S.C. § 103(a)
Appellant contends “A percentage of a collection, as disclosed by
Krikorian, does not teach or suggest a percentage of an expected streaming
period, as claimed by appellant.” (App. Br. 10-11).
The Examiner finds Krikorian’s system, which allocates playtime
duration to a particular collection, teaches or at least suggests the
“percentage of the expected media streaming period.” (Ans. 11-12). We
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agree with the Examiner’s finding, because we find a specified play time
duration of a collection suggests playing a percentage of that collection.
Therefore, on this record, and based upon a preponderance of the
evidence, we are not persuaded by Appellant’s arguments regarding claims
5, 12 and 19. Accordingly, we sustain the Examiner’s rejection A of claims
5, 12 and 19.
Rejection B of Claims 7, 14, 23, 24, and 26
Appellant merely advances conclusory arguments for claims 7, 14, 23,
24, and 26, rejected under rejection B.4 (App. Br. 11). We find such non­
substantive arguments unpersuasive. Therefore, we sustain the Examiner’s
rejection B of claims 7, 14, 23, 24, and 26 on appeal.
Reply Brief
To the extent Appellant may advance new arguments in the Reply
Brief not in response to a shift in the Examiner's position in the Answer, we
note arguments raised in a Reply Brief that were not raised in the Appeal
Brief or are not responsive to arguments raised in the Examiner’s Answer
will not be considered except for good cause. See 37 C.F.R. § 41.41(b)(2).
4 It is well settled that mere attorney arguments and conclusory statements,
which are unsupported by factual evidence, are entitled to little probative
value. In re Geisler, 116 F.3d 1465, 1470 (Fed. Cir. 1997); see also In re
Pearson, 494 F.2d 1399, 1405 (CCPA 1974) (attorney argument is not
evidence). See also Manual of Patent Examining Procedure (MPEP) § 2145
(9th ed. Nov. 2015) (“Attorney argument is not evidence unless it is an
admission, in which case, an examiner may use the admission in making a
rejection.”).
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DECISION
We affirm the Examiner’s rejections of claims 1-20 and 22-26 under
pre-AIA 35 U.S.C. § 103(a).
No time for taking any action connected with this appeal may be
extended under 37 C.F.R. § 1.136(a)(1). See 37 C.F.R. § 41.50(f).
AFFIRMED
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