Ex Parte ZazzaDownload PDFPatent Trial and Appeal BoardApr 21, 201412504663 (P.T.A.B. Apr. 21, 2014) Copy Citation UNITED STATES PATENT AND TRADEMARK OFFICE ____________________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________________ Ex parte FRANK ZAZZA ____________________ Appeal 2011-012779 Application 12/504,663 Technology Center 2400 ____________________ Before ST. JOHN COURTENAY III, THU A. DANG, and LARRY J. HUME, Administrative Patent Judges. DANG, Administrative Patent Judge. DECISION ON APPEAL Appeal 2011-012779 Application 12/504,663 2 I. STATEMENT OF THE CASE Appellant appeals under 35 U.S.C. § 134(a) from a final rejection of claims 1-3. However, Appellant only provides a copy of claim 1 in the Claims Appendix and merely states that, “[c]laim 1 as amended… is the claim at issue in this appeal” (App. Br. 1). In particular, Appellant does not appeal claims 2 and 3, but note that they are pending and rejected (id.). The Board has no jurisdiction as to non-appealed claims, and we consider claims 2 and 3 not before us for review. The Examiner has the authority to cancel the non-appealed claims. See Ex parte Ghuman, 88 USPQ2d 1478, 1480 (BPAI 2008) (precedential). We have jurisdiction as to claim 1 under 35 U.S.C. § 6(b). We affirm. A. INVENTION According to Appellant, the invention relates to interactive on- demand or broadcast video displaying selectable tags associated with additional video content (Spec. 1, ¶ [2]). B. CLAIM Claim 1: 1. A method of inserting a viewer selectable icon and associated entertainment capsule content in interactive programming that includes one or more entertainment segments and one or more commercial segments comprising: associating the viewer selectable icon with content of a first entertainment segment; delivering the interactive programming from a headend to a viewer display where the headend includes: a server with memory storing at least the one or more commercial segments and the entertainment capsule content; Appeal 2011-012779 Application 12/504,663 3 a queue for sequencing delivery of at least the one or more commercial segments and the entertainment capsule content; and a program manager that sequences the order of the queue; displaying the viewer selectable icon simultaneously with the associated content of the first entertainment segment; and in response to viewer selection of the viewer selectable icon the program manager sequencing the queue such that: the balance of the first entertainment segment is delivered from the headend and displayed; then at least one commercial segment is delivered from the headend and displayed; and then the entertainment capsule content associated with the viewer selectable icon is delivered from the headend and displayed. C. REJECTION The prior art relied upon by the Examiner in rejecting the claims on appeal is: Plotnick US 2002/0184047 A1 Dec. 5, 2002 Minor US 2009/0064219 A1 Mar. 5, 2009 Claim 1 stands provisionally rejected on the ground of nonstatutory obviousness-type double patenting as being unpatentable over claims 1-3 of copending Application No. 12/629,883. Claim 1 stands rejected under 35 U.S.C. § 103(a) as being unpatentable over Plotnick and Minor. Appeal 2011-012779 Application 12/504,663 4 II. ISSUE The principal issue before us is whether the Examiner has erred in finding that the combination of Plotnick and Minor would have taught or suggested in response to viewer selection . . . the program manager sequencing the queue such that: the balance of the first entertainment segment is delivered from the headend and displayed; then at least one commercial segment . . .; and then the entertainment capsule content associated with the viewer selectable icon . . . as recited in claim 1 (emphases added). III. FINDINGS OF FACT The following Findings of Fact (FF) are shown by a preponderance of the evidence. Plotnick 1. Plotnick discloses a universal ad queue, wherein Figure 3 is reproduced below: Appeal 2011-012779 Application 12/504,663 5 Figure 3 discloses a playlist 300 identifying date 310, timeframe 320, media type 330 and name 350, wherein the playlist coordinates the placement of product placement ads with commercials (p. 5, [0054]). 2. Ads are scheduled either before (pre-end) or after (post-end) a video has been selected, or may be during the programming depending on the programming and billing selected (p. 4, [0048]). Minor 3. Minor discloses providing unobtrusive video advertising content, wherein Figure 1A is reproduced below: Appeal 2011-012779 Application 12/504,663 6 Figure 1A discloses an advertising module 122 identifying an object 157 in a video image sequence 153 and alerting a viewer of available video advertising content associated with the object 157 via the display 110 and user interface 155a (p. 3, [0029]), wherein the user interface 155a receives a viewer selection of the displayed object and the video advertising content associated with the selected object is provided for display at the end of the video image sequence 153 (p. 3, [0030]). Appeal 2011-012779 Application 12/504,663 7 IV. ANALYSIS Provisional Double Patenting The Examiner provisionally rejects claim 1 on the ground of nonstatutory obviousness-type double patenting as being unpatentable over claims 1-3 of copending Application No. 12/629,883 (Ans. 9). Because copending Application 12/629,883 was abandoned on December 13, 2011, we dismiss the Examiner’s provisional obviousness-type double patenting rejection as moot. 35 U.S.C. § 103(a) Although Appellant concedes “Plotnick also has a queue for ads,” Appellant merely contends “[a] queue with repeating ads is functionally different than sequencing the entertainment capsule after the one or more commercial in response to a viewer selection . . .” (App. Br. 3). Similarly, although Appellant concedes, “Minor teaches viewer selection of an object . . . after an end of the scene . . .” Appellant again merely contends “[t]his is different than sequencing the entertainment capsule after the one or more commercial . . .” (id.). However, the Examiner points out “entertainment capsule content can be numerous items including commercial content, actor information . . .” (Ans. 14). The Examiner then finds that Plotnick and Minor teaches, or would have suggested the claimed invention (id.). We find no error with the Examiner’s underlying factual findings and ultimate legal conclusion that the claims would have been obvious over Plotnick and Minor. Appeal 2011-012779 Application 12/504,663 8 We give the claims their broadest reasonable interpretation consistent with the Specification. See In re Morris, 127 F.3d 1048, 1054 (Fed. Cir. 1997). As an initial matter, we note that claim 1 does not define “first entertainment segment,” “commercial segment,” and “entertainment capsule content” other than the queue is sequenced such that the balance of that first entertainment segment is delivered and displayed, then at least one commercial segment, and then the entertainment capsule. Giving claim 1 its broadest reasonable interpretation, we conclude that claim 1 merely recites that the queue is sequenced such that a first type of data is delivered and displayed, then a second type of data, then a third type of data. Thus, by contending that the sequence of delivery and display of the various types of data in the prior art differs from Appellant’s sequence of delivery and display (App. Br. 3), we find Appellant’s principal argument urging patentability is predicated on non-functional descriptive material (i.e., the type or content of the various data that is being delivered and displayed). That is, “entertainment segment,” “commercial segment,” and “entertainment capsule content” are the type/content of data delivered and displayed, but the type of data is not positively recited as being used to change the manner in which the “delivering” and “displaying” steps are performed, or otherwise change or affect any machine or computer function. The informational content of non-functional descriptive material is not entitled to weight in the patentability analysis. See Ex parte Nehls, 88 USPQ2d 1883, 1887-90 (BPAI 2008) (precedential); Ex parte Curry, 84 USPQ2d 1272 (BPAI 2005) (informative) (Federal Circuit Appeal No. 2006-1003), aff’d, Rule 36 (June 12, 2006)); Ex parte Mathias, 84 USPQ2d Appeal 2011-012779 Application 12/504,663 9 1276 (BPAI 2005) (informative), aff’d, 191 Fed. Appx. 959 (Fed. Cir. 2006). Here, the data types being delivered and displayed in sequence are entitled to no weight in the patentability analysis. Nevertheless, we find no error with the Examiner’s findings and ultimate legal conclusion of obviousness of claim 1 over Plotnick and Minor. In particular, Plotnick discloses sequencing an ad queue, such that product placement ads and commercials are delivered and displayed between program scenes (FF 1-2). That is, Plotnick at least suggests sequencing an ad queue such that the balance of an entertainment segment is delivered and displayed first, then an ad segment, a commercial capsule content, and then other entertainment segment/capsule content (id.). Furthermore, Minor discloses, in response to a viewer selection of a displayed object, the video advertising capsule content associated with the selected object is provided for display at the end of the video image sequence (FF 3). That is, Minor discloses, in response to viewer selection, delivering and displaying an entertainment segment and then delivering and displaying the capsule content associated with the viewer selectable icon last (id.). Accordingly, we find no error with the Examiner’s finding that Plotnick in view of Minor would at least have suggested the features of claim 1 (Ans. 14). That is, since the Examiner rejects the claims as obvious over the combined teachings, the test for obviousness is not what the references show individually but what the combined teachings would have suggested to one of ordinary skill in the art. See In re Merck & Co., 800 F.2d 1091, 1097 (Fed. Cir. 1986). Appeal 2011-012779 Application 12/504,663 10 V. CONCLUSION AND DECISION The Examiner’s rejection of claim 1 under 35 U.S.C. § 103(a) 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 tj Copy with citationCopy as parenthetical citation