Google LLC

Patent Trials and Appeals Board

Jun 16, 2021

2020002022 (P.T.A.B. Jun. 16, 2021)

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.
16/027,023 07/03/2018 Jeffrey Arthur Kardatzke 0715150.127-US4 1082
104433 7590 06/16/2021
Byrne Poh LLP/Google LLC
11 Broadway Ste 760
New York, NY 10004
EXAMINER
ALCON, FERNANDO
ART UNIT PAPER NUMBER
2425
NOTIFICATION DATE DELIVERY MODE
06/16/2021 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):
info@byrnepoh.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte JEFFREY ARTHUR KARDATZKE
____________

Appeal 2020-002022
Application 16/027,023
Technology Center 2400
____________

Before JOHN A. JEFFERY, BETH Z. SHAW, and
JULIET MITCHELL DIRBA, Administrative Patent Judges.

JEFFERY, Administrative Patent Judge.

DECISION ON APPEAL
Under 35 U.S.C. § 134(a), Appellant1 appeals from the Examiner’s
decision to reject claims 1–20. We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.

1 We use the word “Appellant” to refer to “applicant” as defined in 37
C.F.R. § 1.42. Appellant identifies the real party in interest as Google LLC.
Appeal Br. 3.
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STATEMENT OF THE CASE
Appellant’s invention provides media guidance with media content
from alternate sources. For each media content item that is determined to be
available for playback from an alternate source, an alternate source playback
indicator is presented along with the media content listing and, when
selected by a user, can direct a media guidance application to access the
media content item associated with the alternate source playback indicator.
See Spec. ¶¶ 2, 44; Figs. 1–2. Claim 1 is illustrative:
1. A method for providing media guidance with a
plurality of media sources, the method comprising:

receiving, using a hardware processor, a plurality of
media content listings for presenting to a user that are each
associated with one of a plurality of media content sources;

determining, without user intervention, for a media
content listing of the plurality of media content listings, an
availability of a media content item corresponding to the media
content listing from one or more alternate sources of media
content, wherein each of the one or more alternate sources is
different than the plurality of media content sources;

causing the plurality of media content listings to be
presented to the user;

concurrently with causing the plurality of media content
listings to be presented, causing an alternate source indicator to
be presented to the user within the media content listing in
response to determining that the corresponding media content
item is available from the one or more alternate sources of
media content; and

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causing the corresponding media content item to be
presented in response to receiving a selection of the alternate
source indicator.

THE REJECTIONS
The Examiner rejected claims 1–3, 6, 8–10, 13, 15–17, and 19 under
35 U.S.C. § 102(e) as anticipated by Merzon (US 2013/0114940 Al;
published May 9, 2013). Final Act. 3–4.2
The Examiner rejected claims 4, 5, 11, 12, and 18 under 35 U.S.C. §
103(a) as unpatentable over Merzon and Makhlouf (US 2011/0126234 Al;
published May 26, 2011). Final Act. 5–7.
The Examiner rejected claims 7, 14, and 20 under 35 U.S.C. § 103(a)
as unpatentable over Merzon and Iki (US 7,240,356 B2; issued July 3,
2007). Final Act. 7–8.

THE ANTICIPATION REJECTION
Regarding independent claim 1, the Examiner finds that Merzon
discloses every recited element including, among other things, concurrently
with causing plural media content listings to be presented, causing an
alternate source indicator, namely designator 706 in Figure 7, to be
presented to the user within the media content listing responsive to
determining that the corresponding media content item is available from one

2 Throughout this opinion, we refer to (1) the Final Rejection mailed March
25, 2019 (“Final Act.”); (2) the Appeal Brief filed September 19, 2019
(“Appeal Br.”); and (3) the Examiner’s Answer mailed October 18, 2019
(“Ans.”).
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or more alternate sources of media content, namely non-linear content
sources. See Final Act. 3–4; Ans. 4–8.
Appellant argues that Merzon’s designator 706 is not an alternate
source indicator, let alone presented responsive to determining that
corresponding media content item is available from one or more alternate
sources as claimed. Appeal Br. 7–9. According to Appellant, not only is
Merzon’s designator displayed regardless of whether content is available
from multiple sources, the designator merely indicates that content may be
available for recording at a later date—not a media item that is available
from one or more alternate sources. Appeal Br. 7–8.

ISSUE
Under § 102, has the Examiner erred in rejecting claim 1 by finding
that Merzon discloses, concurrently with causing media content listings to be
presented, causing an alternate source indicator to be presented to a user
within a media content listing responsive to determining that the
corresponding media content item is available from one or more alternate
sources of media content (“alternate source indicator limitation”)?

ANALYSIS
We begin by clarifying the Examiner’s mapping. In the rejection, the
Examiner refers to Merzon’s designator in Figure 7 in connection with the
alternate source indicator limitation and, in particular, finds that this
designator may indicate a currently available show from a non-linear
content source. Final Act. 4. Our emphasis underscores that the Examiner
relies on the designator’s indication that content is not just available—but
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rather currently available—from a non-linear source, which the Examiner
presumably maps to the recited alternate source of media content. Accord
Ans. 5 (noting that Merzon’s designator 706 indicates that content is
available from a non-linear source, and is selectable to cause the program to
begin playing from the currently available non-linear content source).
We see no error in these findings. As noted in the Abstract, Merzon’s
system presents “linear” and “non-linear” content via a video recording
device. In Merzon’s parlance, “linear” content sources provide content
according to a specified schedule, such as broadcast television channels.
Merzon ¶ 1. “Non-linear” content sources, on the other hand, allow users to
access available content on demand. Id. As noted above, it is Merzon’s
non-linear content sources that the Examiner apparently maps to the recited
alternate media content sources. See Final Act. 4; Ans. 5.
Merzon’s Figure 6 shows a method of alerting a user of a video
recording device to an alternate source of a content item. Merzon ¶ 44.
After querying for content at a second source, which can be a non-linear
content source, the system evaluates whether content is available at the
second source, namely whether content exists at that source as noted in the
textual label for step 610 in Figure 6. See Merzon ¶¶ 45–46. If content is
available at step 610, the system then determines whether the content is
available now in step 622 and, if so, the content is recorded, the latter step
involving either downloading or storing a pointer to non-linear content in
steps 632 and 634. See Merzon ¶¶ 46, 48.
Our emphasis underscores that Merzon distinguishes available
content, namely that which exists in the second source, from content that is
available now or available immediately—a distinction that is apparent from
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the two distinct determinations made in steps 610 and 622 of Merzon’s
Figure 6. As shown in that figure, the first determination determines
whether content exists at the second source in step 610—an existence
determination that Merzon also indicates is an availability determination in
paragraph 46. But this particular content availability determination merely
determines whether the content exists at the second source: it does not mean
that the content is necessarily available now or available immediately. See
Merzon ¶ 46 (noting that content “available” at a second source is not
necessarily “available now”).
That immediate content availability determination, however, is made
in step 622 and, if the content is available immediately, it is recorded—a
recording step that can include storing a pointer, such as a URL, to the non-
linear content’s location. See Merzon ¶¶ 48–49. Accord Ans. 7 (noting this
functionality).
Merzon’s Figure 7 shows a displayed user interface in a digital video
recorder where notifications are provided in an electronic programming
guide (EPG). Merzon ¶ 51. As shown in Merzon’s Figure 7 reproduced
below, various programs are listed as shown on different channels and times,
namely from 4 to 5 PM on channels 2 to 7.

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Merzon’s Figure 7 listing programs shown on different times and
channels

As shown above, Merzon’s user interface also includes designator 706
indicating that designated show, namely the sitcom scheduled for 5 PM on
channel 6, is also available to watch now. See Merzon ¶¶ 52–53. That is,
despite this show airing at 5 PM on channel 6, it is nonetheless also
currently available from a non-linear content source, where selecting the
designator 706 causes the program to begin playing. See id. ¶ 53.
Notably, this functionality not only indicates that content is available
from a linear source, namely that which provides the programs at their
regularly scheduled times and channels, but also a non-linear source, namely
that which provides the content on demand when selecting the appropriate
indicator which, for the sitcom at 5 PM on channel 6, is designator 706. See
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Merzon ¶¶ 1 (distinguishing linear and non-linear content), 51–53; Fig. 7.
Accord Ans. 4–5 (noting that Merzon’s EPG indicates that content is
available from a linear source, and designator 706 indicates the content’s
availability from a non-linear source).
As noted above, because this designator indicates that the content is
currently available for viewing now via a non-linear source, the designator is
effectively presented responsive to determining that immediate availability.
See Merzon ¶ 53. Otherwise, the designator would not be presented, as is
the case with other programs in the EPG interface that are available only via
a linear source, such as the local news at 5 PM on channel 7. See Merzon
Fig. 7. Given this visual distinction, Appellant’s contention that Merzon’s
designator is ostensibly displayed regardless of whether content is available
from multiple sources (Appeal Br. 8) is unavailing.
Appellant’s contention that Merzon’s designator 706 is not an
alternate source indicator (Appeal Br. 7) is likewise unavailing, given the
designator’s indication that content that is broadcast on a certain channel and
at a particular time, namely 5 PM on channel 6, via a linear source is also
available to view immediately via a non-linear source on demand. See
Merzon ¶¶ 1, 51–53; Fig. 7.
To be sure, content that is available at a second, non-linear source as
determined in step 610 of Merzon’s Figure 6 may be available for recording
at a later date as Appellant indicates. See Appeal Br. 8 (citing Merzon ¶ 46).
Nevertheless, nothing in the claim precludes this availability determination
and notification in step 614 even assuming, without deciding, that Merzon’s
designator 706 enables users to record the immediately-viewed program at a
later date—despite indicator 708 being used specifically for that purpose.
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See Merzon ¶¶ 46–47, 51–54 (noting that designator 708 indicates the show
is scheduled to be recorded at some other time). In short, Appellant’s
arguments are not commensurate with scope of the claim that does not
preclude this functionality as the Examiner indicates. See Ans. 7 (noting
that the claim does not require the content be viewed immediately, and
causing content to be recorded and viewed later still meets the claim).
That Appellant’s Specification indicates in paragraph 35 that a user
can tune to a media content item if it is currently available, yet later in that
paragraph notes that the media guidance application can determine whether
media content items are available from an alternate content source only
underscores the distinction between availability as claimed and current
availability. Accord Spec. ¶ 56 (noting that “hollow” alternate source
playback indicator 900 in Figure 9 indicates that a media content item is
available from an alternate source that is currently unavailable).
Nevertheless, even if the claim required determining a media content
item’s current availability—which it does not—indicating that availability
from an alternate source responsive to that determination is still taught by
Merzon, as noted previously.
Therefore, we are not persuaded that the Examiner erred in rejecting
claim 1, and claims 2, 3, 6, 8–10, 13, 15–17, and 19 not argued separately
with particularity.

THE OBVIOUSNESS REJECTIONS
We also sustain the Examiner’s obviousness rejections of claims 4, 5,
7, 11, 12, 14, 18, and 20. Final Act. 5–8. Because these rejections are not
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argued separately with particularity, we are not persuaded of error in these
rejections for the reasons previously discussed.

CONCLUSION
In summary:
Claims
Rejected
35 U.S.C. § Reference(s)/
Basis
Affirmed Reversed
1–3, 6, 8–
10, 13, 15–
17, 19
102(e) Merzon 1–3, 6, 8–10,
13, 15–17, 19

4, 5, 11,
12, 18
103(a) Merzon,
Makhlouf
4, 5, 11, 12,
18

7, 14, 20 103(a) Merzon, Iki 7, 14, 20
Overall
Outcome
1–20

TIME PERIOD FOR RESPONSE
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). See 37
C.F.R. § 41.50(f).

AFFIRMED