Google Inc.

Patent Trials and Appeals Board

Nov 16, 2020

14933937 - (D) (P.T.A.B. Nov. 16, 2020)

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.
14/933,937 11/05/2015 Ken Krieger 098981-4273 3180
10575 7590 11/16/2020
FOLEY & LARDNER LLP
3000 K STREET N.W.
SUITE 600
WASHINGTON, DC 20007-5109
EXAMINER
TILAHUN, ALAZAR
ART UNIT PAPER NUMBER
2424
NOTIFICATION DATE DELIVERY MODE
11/16/2020 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):
ipdocketing@foley.com
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
________________

Ex parte KEN KRIEGER, ANDREW JOSEPH ALEXANDER GILDFIND,
NICHOLAS SALVATORE ARINI, SIMON MICHAEL ROWE, and
RAIMUNDO MIRISOLA
________________

Appeal 2020-001542
Application 14/933,937
Technology Center 2400
________________

Before ALLEN R. MacDONALD, JEAN R. HOMERE, and
JASON V. MORGAN, Administrative Patent Judges.

MORGAN, Administrative Patent Judge.

DECISION ON APPEAL
STATEMENT OF THE CASE
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s decision to reject claims 1, 4–11, and 14–24, which constitute all
the claims pending in this application. Claims 2, 3, 12, and 13 are canceled.
Appeal Br. 31, 34. An oral hearing was held October 29, 2020. A transcript
of the proceeding is being prepared and will be entered into the record in due
course. We have jurisdiction under 35 U.S.C. § 6(b). We REVERSE.

1 “Appellant” refers to “applicant” as defined in 37 C.F.R. § 1.42. Appellant
identifies the real party in interest as Google LLC. Appeal Br. 2.
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Application 14/933,937

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SUMMARY OF THE DISCLOSURE
Appellant’s claimed subject matter relates to a presence engine that
“determines a probability that a particular viewer and a particular media
device are in a specific []room based on its received inputs.” Spec. 14:13–5;
Abstract. The claimed subject matter further relates to determining that the
particular viewer is not viewing another media device at a different location.
Appeal Br. 30; Spec. 18:9–11 (claim 1 as originally filed).
ILLUSTRATIVE CLAIM
(Key Disputed Limitations Emphasized and Bracketing Added)
1. A method for determining viewer presence at a media device,
comprising:
receiving, by a location engine executed by a processor of a
measurement device from a first device, a first identification of a
presence of a viewer at a first location of a building including the
first device;
receiving, by the location engine from a second device, a second
identification of a presence of the viewer at a second location of
the building including the second device, the second location
different from and proximate to the first location;
determining, by a presence engine executed by the processor, a
first probability of the first identification and a second
probability of the second identification, the first probability
indicating a first likelihood that the viewer is present at the first
location, the second probability indicating a second likelihood
that the viewer is present at the second location;
[1] determining, by the presence engine, based on the first
probability of the first identification exceeding the second
probability of the second identification, that the viewer is viewing
media on the first device at the first location and not the second
device at the second location;
automatically authenticating, by an authentication engine
executed by the processor, without active entry of authentication
credential input by the viewer on either the first device or the
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second device, the viewer to the first device at the first location
and not the second device at the second location responsive to
determining that the viewer is viewing media on the first device
at the first location; and
recording, by a measurement engine executed by the processor,
a consumption metric for the viewer of media displayed on the
first device responsive to automatically authenticating the viewer
to the first device.
REFERENCES
The prior art relied upon by the Examiner is:
Name Reference Date
Donato US 8,091,100 B2 Jan. 3, 2012
Massimi US 2009/0217324 A1 Aug. 27, 2009
Brown et al. (“Brown”) US 2010/0306394 A1 Dec. 2, 2010
Korbecki US 2013/0173765 A1 July 4, 2013
REJECTIONS
The Examiner rejects claims 1, 4–7, 11, 14–17, 20, 21, 23, and 24
under 35 U.S.C. § 103(a) as obvious over Brown, Donato, and Massimi.
Final Act. 2–9.
The Examiner rejects claims 8–10, 18, 19, and 22 under 35 U.S.C.
§ 103(a) as obvious over Brown, Donato, Massimi, and Korbecki. Final Act.
9–12.
ANALYSIS
In rejecting claim 1 as obvious, the Examiner finds that Donato’s
determination of the probability that a predicted person is in an audience of a
receiver teaches or suggests recitation [1], “determining . . . based on the
first probability of the first identification exceeding the second probability of
the second identification, that the viewer is viewing media on the first device
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at the first location and not the second device at the second location.” Final
Act. 4–5 (citing Donato 2:17–20, 64–66, 4:43–47, 5:64–65, claim 1, Figs. 5–
6); Ans. 4–5 (further citing Donato 6:24–28, Figs. 1, 8).
Appellant contends the Examiner erred because “Donato at no point
ever considers determining whether the audience member is in the audience
of one receiver and not in the audience of another receiver.” Appeal Br. 14–
15. According to Appellant, rather, “Donato lays out [that] the
determination of ‘whether the audience member . . . is the PREDICTED
PERSON’ is performed ‘if the probability . . . is not less than the
predetermined threshold.’” Id. at 15. Thus, Appellant argues “[t]here is no
contemplation in Donato of [a] determination of any kind based on a
probability of one identification exceeding another probability of another
identification in the manner recited in the claim.” Id.
We agree with Appellant the Examiner erred. Donato determines the
probability that a predicted person is in the audience by dividing the number
of times the predicted person tuned into a program having the relevant
source identification (SID) class during the current day part by the count for
that SID class and day part. Donato 11:44–49. The numbers used in this
probability calculation come from data accumulated from monthly viewings
regarding how many times household members tuned into programs of
different SID classes on devices in each room. Id. 8:61–9:48. That is,
contrary to the Examiner’s characterization of Donato, the values do not
“represent[] the audience members as they enter or leave . . . reception
area[s] associated with the receiver[s].” Ans. 5. More importantly, we are
unable to discern from Donato that counts in one room are compared with
counts in another room as the Examiner posits. Id.
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As a consequence, Donato fails to determine that a viewer is not
viewing media on a second device at a second location, as required by
recitation [1]. Rather, Donato merely “specifies that the measurement
apparatus is to prompt ‘audience members in the audience of the receiver to
identify themselves.’” Appeal Br. 15; Donato Fig. 4A–B. That is, Donato at
most determines that the probability that a particular viewer is in the
audience of a device is below a threshold at which the audience members,
not the device, are to be prompted to determine who is in the audience (and
thus whether the particular viewer is in the audience). The Examiner’s
analysis fails to show that this reliance on prompting falls within the
broadest reasonable scope of recitation [1] or that such prompting is “based
on the first probability of the first identification exceeding the second
probability of the second identification.” Moreover, the Examiner fails to
show that other cited art cures this deficiency in Donato. Therefore, the
Examiner’s findings fail to show that Donato, even in combination with
other prior art of record, teaches or suggests recitation [1].
Accordingly, we do not sustain the Examiner’s obviousness rejection
under 35 U.S.C. § 103(a) of claim 1, or the Examiner’s obviousness
rejections of claims 4–11 and 14–24, which have similar recitations.
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Application 14/933,937

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CONCLUSION
Claims
Rejected
35
U.S.C. § References Affirmed Reversed
1, 4–7, 11,
14–17, 20,
21, 23, 24
103(a) Brown, Donato,
Massimi
1, 4–7, 11,
14–17, 20,
21, 23, 24
8–10, 18,
19, 22
103(a) Brown, Donato,
Massimi, Korbecki
8–10, 18,
19, 22
Overall
Outcome
1, 4–11,
14–24
REVERSED