Ex Parte Yassa

Patent Trial and Appeal Board

Jun 26, 2018

12080825 (P.T.A.B. Jun. 26, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
12/080,825 04/03/2008
23373 7590 06/28/2018
SUGHRUE MION, PLLC
2100 PENNSYLVANIA A VENUE, N.W.
SUITE 800
WASHINGTON, DC 20037
FIRST NAMED INVENTOR
Fathy F. Yassa
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.
A211004 5943
EXAMINER
IDOWU, OLUGBENGA 0
ART UNIT PAPER NUMBER
2425
NOTIFICATION DATE DELIVERY MODE
06/28/2018 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):
PPROCESSING@SUGHRUE.COM
sughrue@sughrue.com
USPTO@sughrue.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Exparte FATHY F. YASSA
Appeal2018-000185
Application 12/080,825 1
Technology Center 2400
Before MICHAEL J. STRAUSS, SHARON PENICK, and
DAVID J. CUTITTA II, Administrative Patent Judges.
CUTITTA, Administrative Patent Judge.
DECISION ON APPEAL
This is an appeal under 35 U.S.C. § 134(a) from the Examiner's final
rejection of claims 1-9 and 24---62. 2 Appellant identifies an appeal filed for
Application No. 13/411,323 as related. See Br. 2. We have jurisdiction over
this appeal under 35 U.S.C. § 6(b ).
We AFFIRM.
1 The Brief identifies the real party in interest as Mr. Fathy F. Y assa. See
Br. 2.
2 Claims 10-23 are canceled. See Br. 23.
Appeal2018-000185
Application 12/080,825
STATEMENT OF THE CASE
Introduction
According to Appellant, the claimed invention relates to permitting
"content providers to insert personalized content into a television signal
based upon the user preferences or viewing habits." Spec. (abstract). 3
Exemplary Claim
Claims 1, 31, and 4 7 are independent. Claim 1 is exemplary of the
claimed subject matter and is reproduced below with the limitations at issue
emphasized:
1. A method for the dynamic delivery of personalized
content from a content provider to a mobile device, the method
compnsmg:
receiving a programming transport stream, the
programming transport stream comprising content provided by
the content provider and the personalized content provided by
the content provider based on user demographic information or
viewing habits;
demultiplexing the content and the personalized content
from the programming transport stream;
transmitting a signal corresponding to at least one
television channel of the demultiplexed content to a television;
converting content of at least one television channel of
the demultiplexed personalized content to a second transport
stream; and
3 Throughout this Decision, we refer to: (1) Appellant's Specification filed
April 3, 2008 ("Spec."); (2) the Final Office Action ("Final Act."), mailed
December 31, 2015; (3) the Appeal Brief filed December 23, 2016 and
Supplemental Appeal Briefs filed January 26, 2017 and April 17, 2018
("Br."); and (4) the Examiner's Answer ("Ans."), mailed May 5, 2017.
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Application 12/080,825
transmitting the second transport stream to the mobile
device,
wherein the personalized content is audio/video (AV)
content.
Br. 22.
REFERENCES
The Examiner relies upon the following prior art in rejecting the
claims on appeal:
Schlack et al.
("Schlack")
Ueno
Bisdikian et al.
("Bisdikian")
Mitchell
US 2002/0129368 Al
US 6,738,421 Bl
US 2004/0117857 Al
US 7,360,232 B2
REJECTIONS
Sept. 12, 2002
May 18, 2004
June 17, 2004
Apr. 15, 2008
Claims 1-9, 24--27, 31--43 and 47-59 stand rejected under
35 U.S.C. § 103(a) as being unpatentable over Bisdikian, Schlack, and
Mitchell. Final Act. 3-8.
Claims 28-30, 44--46 and 60-62 stand rejected under 35 U.S.C.
§ 103(a) as being unpatentable over Bisdikian, Schlack, Mitchell, and Ueno.
Final Act. 8-9.
Our review in this appeal is limited only to the above rejections and
the issues raised by Appellant. Arguments not made are waived. See 37
C.F.R. §§ 41.37(c)(l)(iv), 41.39(a)(l).
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Application 12/080,825
ISSUE
Whether the Examiner errs in finding the combination of Bisdikian,
Schlack, and Mitchell teaches or suggests "the programming transport
stream comprising content provided by the content provider and the
personalized content provided by the content provider based on user
demographic information or viewing habits ... wherein the personalized
content is audio/video (AV) content," as recited in independent claim 1, and
as similarly recited in independent claims 31 and 4 7.
ANALYSIS
The Examiner finds the combination of Bisdikian, Schlack, and
Mitchell teaches or suggests the limitations at issue in claim 1. See Final
Act. 3-5; Ans. 8-10.
Appellant disputes the Examiner's factual findings. Appellant argues
that the combination of Bisdikian, Schlack, and Mitchell fails to teach or
suggest the limitations at issue in claim 1. Br. 19.
We are not persuaded. Bisdikian discloses a broadcast services
provider that "multiplexes, i.e., combines, information related to
merchandise [i.e., supplemental content] with its broadcast programming"
[i.e., content]. Bisdikian i-f 27. The Examiner finds, and we agree, the cited
paragraph of Bisdikian teaches "[r]eceiving a programming transport stream,
the programming transport stream comprising content provided by the
content provider and supplemental content." Final Act. 4 (citing Bisdikian
i-f 27). Thus, as the Examiner finds, Bisdikian teaches or suggests the
disputed receiving step of claim 1 except for specifying that supplemental
content includes the recited personalized content is audio/video content. Id.
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Schlack discloses "[ m ]ethods for delivering advertising or other
customized programming to viewers in a television environment based on
previous viewing habits or menu selections." Schlack i-f 63. The Examiner
finds, and we agree, that "[i]n an analogous art, Schlack teaches the
personalized [(i.e., supplemental)] content provided by the content provider
[is] based on user demographic information or viewing habits (customizing
content sent to user based on history and habits ... ). " Final Act. 4 (citing
Schlack ,-r 63).
Mitchell discloses "STB 102 may be configured to send, to the remote
device 204, background information [(i.e., supplemental content)] for
television programs [(i.e., content)], such as pictures of actors and actresses,
video previews, and audio/ video interviews with people associated with the
program." Mitchell 7:35--46. Mitchell also discloses "triggers [that] can
include URL addresses and other supplemental content, such as a weather
alert, an emergency announcement, stock indexes, scores of sport games,
and the like that are not necessarily related to the particular program being
shown on the channel," where "the triggers are targeted at a particular
viewer." Mitchell 12:28-52 (emphasis added). The Examiner finds, and we
agree, that "[i]n an analogous art, Mitchell teaches wherein the personalized
content is audio/video (AV) content (supplemental content being video ...
[and] supplemental content being personalized ... )." Final Act. 5 (citing
Mitchell 7:35--46, 12:28-52).
Appellant's arguments that: "Mitchell does not multiplex audio/video
with the television content-as the only information multiplexed with the
television content is conventional text," (Br. 12); "the 'additional data' of
Bisdikian is not 'audio/video (AV) content"' (Br. 17); and "targeted ads in
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Application 12/080,825
Schlack, are nothing more than conventional programming content" (Br. 19)
unpersuasively attack Mitchell, Bisdikian, and Schlack individually when
the rejection is based on the combination of Bisdikian, Schlack, and
Mitchell. (emphasis omitted). In re Merck & Co., 800 F .2d 1091, 1097
(Fed. Cir. 1986) (citation omitted) ("Non-obviousness cannot be established
by attacking references individually where the rejection is based upon the
teachings of a combination of references."). In particular, Appellant's
argument that "Mitchell does not multiplex audio/video with the television
content" (Br. 12) does not address the Examiner's finding that Bisdikian
teaches a broadcast services provider that multiplexes supplemental content
with its broadcast programming (Final Act. 4 (citing Bisdikian i-f 27)) and
that Mitchell teaches the supplemental content may include audio/video
content (Final Act. 5), namely "video previews, and audio/ video interviews
with people associated with the program" (Mitchell 7:35--46).
Appellant's argument that "Bisdikian is not 'audio/video (AV)
content"' (Br. 17) does not address the Examiner's finding that Mitchell
teaches the personalized content is audio/video content (Final Act. 5),
namely "video previews, and audio/ video interviews with people associated
with the program" (Mitchell 7:35--46).
Appellant's argument that "targeted ads in Schlack, are nothing more
than conventional programming content" and "are not 'personalized
content"' is not persuasive because Schlack discloses "delivering advertising
or other customized programming to viewers in a television environment
based on previous viewing habits." (Schlack i-f 63). We agree with the
Examiner's finding that Schlack's customized programming based on
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previous viewing habits teaches personalized content, as claimed. Final
Act. 4 (citing Schlack i-f 63).
Appellant argues "[n]either Biskidian [(sic)], Schlack, nor Mitchell
contemplate 'a programming transport stream' comprising both 'content
provided by the content provider and the personalized content provided by
the content provider based on user demographic information or viewing
habits ... wherein the personalized content is audio/video (AV) content'."
Br. 19.
Such a conclusory statement, however, amounting to little more than a
paraphrasing of the claim language and a general denial, is unpersuasive to
rebut the prima facie case produced by the Examiner. Cf 37 C.F.R.
§ 41.37(c)(l)(iv) (2007) ("A statement which merely points out what a claim
recites will not be considered an argument for separate patentability of the
claim."); see also In re Lovin, 652 F.3d 1349, 1357 (Fed. Cir. 2011) ("[W]e
hold that 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.").
Further, the Examiner has articulated reasoning for the combination
(Final Act. 4, 5) having "some rational underpinning to support the legal
conclusion of obviousness," which reasoning Appellant fails to persuasively
address. KSR Int'! v. Teleflex, Inc., 550 U.S. 398, 418 (2007).
For the reasons discussed, Appellant has not shown error in the
Examiner's factual findings or conclusion of obviousness. Accordingly, we
sustain the Examiner's 35 U.S.C. § 103(a) rejection of independent claim 1
as well as the rejection of independent claims 31and47, which Appellant
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argues together with independent claim 1. See Br. 10. Dependent claims 2-
9, 24--30, 32--46, and 48-62 are not argued separately and so the rejections
of these claims are sustained for the reasons given for independent claim 1.
See Br. 19.
DECISION
We AFFIRM the Examiner's decision rejecting claims 1-9 and 24--62
under 35 U.S.C. § 103(a).
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
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