Jason Canney et al.

Patent Trials and Appeals Board

May 13, 2020

14943559 - (D) (P.T.A.B. May. 13, 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.
14/943,559 11/17/2015 Jason Canney CAN-0012 9154
39564 7590 05/13/2020
FisherBroyles, LLP - MAIN CN
945 East Paces Ferry Road NE
Suite 2000
Atlanta, GA 30326
EXAMINER
BOYD, ALEXANDER L
ART UNIT PAPER NUMBER
2424
NOTIFICATION DATE DELIVERY MODE
05/13/2020 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):
docketing@fisherbroyles.com
patent@fisherbroyles.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________________

Ex parte JASON CANNEY, STEVE MARKEL,
TIMOTHY R. WHITTON, BOB GRIESE,
JULIE SAMUELSON, CHRIS PIZZURRO,
MARK SHEPARD, and YONG LIU
____________________

Appeal 2018-006046
Application 14/943,559
Technology Center 2400
____________________

Before MAHSHID D. SAADAT, LINZY T. McCARTNEY, and
JOHN P. PINKERTON, Administrative Patent Judges.

PINKERTON, Administrative Patent Judge.

DECISION ON APPEAL
Appellant1 appeals under 35 U.S.C. § 134(a) from the Examiner’s
Final Rejection of claims 1–15, which are all of the claims pending in the
application. 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 CANOE
VENTURES, LLC. Appeal Br. 3.
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STATEMENT OF THE CASE
Appellant’s Invention
Appellant generally describes the disclosed and claimed invention as
operable to distribute asset opportunities across a plurality of Content On
Demand (COD) providers. Appeal Br. 4 (citing Fig. 1 (nos. 110-1–110-N);
Spec. ¶ 23).2
Appellant’s Specification explains that television networks, such as
ABC, CBS, and NBC, have for many years broadcast television shows to
generate revenue through advertising. Spec. ¶ 3. The networks produce
television shows, or “content,” and then seek sponsors to advertise on the
shows. Id. The shows have designated timeslots in which the sponsors’
advertisements, or “assets,” are inserted. Id. The content and inserted assets
are then broadcast by the television networks, or “content providers,” to the
public over licensed airways, which is sometimes referred to as linear video
distribution. Id.
According to the Specification, certain devices, such as digital
recorders, have come along to circumvent this form of marketing by
permitting customers to record entire episodes of content and view it at their
leisure, but also permitting customers to “fast-forward or skip through the
assets without viewing them.” Id. at ¶ 7. “In response, content providers
started providing content on a ‘Content On Demand’ (COD) basis,
sometimes referred to as nonlinear video distribution.” Id. at ¶ 8. This

2 Our Decision refers to the Final Office Action mailed Mar. 3, 2017 (“Final
Act.”), Appellant’s Appeal Brief filed Nov. 06, 2017 (“Appeal Br.”), the
Examiner’s Answer mailed Feb. 27, 2018 (“Ans.”), and the Specification
filed Nov. 17, 2015 (“Spec.”).
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permits a customer to select desired content through a set-top box (STB), or
other customer premise equipment (CPE), and watch the content at the
customer’s leisure. Id.
The Specification further explains that COD content can also be
configured with timeslots where assets may be inserted and that an
advertiser desiring to place an advertisement in a particular TV show may
pay the owner of the show to insert the advertisement into timeslots in the
COD content, which is then delivered to a user’s CPE. Id. at ¶ 9. If the
owner of a TV show wants to sell an asset opportunity to another content
provider, the described system processes these asset opportunities and makes
them available to a trading platform, which sells them to other content
providers. Id. at ¶¶ 10, 23.
Illustrative Claim
Claims 1, 6, and 11 are independent. Claim 1 is illustrative of the
subject matter on appeal and provides as follows:
1. A system operable to distribute asset opportunities across
a plurality of content on demand (COD) providers, the system
comprising a processor operable to implement at least one of an
asset load manager (ALM) and an asset opportunity information
system (AOIS):
the ALM being operable to interface with the COD
providers, to receive information from the COD providers about
asset opportunities for COD content of the COD providers, to
select a first of the asset opportunities from a first of the COD
providers, and to deliver the first asset opportunity to a trading
platform that offers the first asset opportunity to the remaining
COD providers;
wherein the first asset opportunity comprises demographic
information intended for the COD content, and
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wherein the ALM is further operable to receive, from the
trading platform, sale information of the first asset opportunity
to a second of the COD providers and information of an asset
used to fill the first asset opportunity; and
the AOIS being operable to interface with an asset
decision system (ADS), to direct the ADS to configure asset
rankings and removals according to rules of the second COD
provider,
wherein the ADS directs an asset insertion into the COD
content of the first COD provider based on the asset ranking.
Appeal Br. 16 (Claims App.).
Rejection on Appeal3
Claims 1–15 stand rejected under 35 U.S.C. § 103 as being
unpatentable over Zeigler et al. (US 2015/0120459 A1; published Apr. 30,
2015) (“Zeigler”), Zschocke et al. (US 2010/0138290 A1; published June 3,
2010) (“Zschocke”), and Canney et al. (US 2014/0310756 A1; published
Oct. 16, 2014) (“Canney”). Final Act. 4–9.
ANALYSIS
We have reviewed the Examiner’s rejection of claims 1–15 in light of
Appellant’s arguments in the Appeal Brief (see Appeal Br. 8–15).4 Any
other arguments Appellant could have made, but chose not to make, are
waived. See 37 C.F.R. § 41.37(c)(1)(iv). For the reasons discussed below,
Appellant’s arguments are not persuasive of error by the Examiner. Unless
otherwise indicated, we agree with, and adopt as our own, the Examiner’s
findings of fact and conclusions as set forth in the Office Action from which

3 The Examiner rejected claims 1–5 under 35 U.S.C. § 112(b) for
indefiniteness, but withdrew the rejection after considering Appellant’s
arguments in the Appeal Brief. See Final Act. 3–4; Ans. 3.
4 Appellant did not file a reply brief.
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this appeal is taken (Final Act. 4–9) and in the Answer (Ans. 3–9). We
provide the following explanation for emphasis.
Appellant argues claims 1–15 as a group focusing on independent
claim 1. See Appeal Br. 8. We select claim 1 as representative of the group
of claims pursuant to our authority under 37 C.F.R. § 41.37(c)(1)(iv).
The Examiner rejects claim 1 under 35 U.S.C. § 103 for obviousness
over the combined teachings of Ziegler, Zschocke, and Canney. Final Act.
4. Appellant contends that nothing in the cited references teaches “deliver
the first asset opportunity to a trading platform that offers the first asset
opportunity to the remaining COD providers” and “directs the ADS to
configure asset rankings and removals according to rules of the second COD
provider,” as recited in claim 1. Appeal Br. 9−10. Each of these limitations
of claim 1 is considered below.
1. “deliver the first asset opportunity to a trading platform that offers
the first asset opportunity to the remaining COD providers”
The Examiner finds that Ziegler teaches “an ad broker interconnect
system 210 (asset load manager (ALM)) that receives ad avail information
(asset opportunities) from content providers” and that the ad broker
interconnection system of Ziegler teaches most of the functionality of claim
1. Ans. 3–4 (citing Ziegler Figs. 2–4, ¶¶ 42, 44–45, 49, 70).
The Examiner finds that Zschocke teaches “an auctioning platform
that allows asset providers to bid on asset delivery spots (asset
opportunities), [and] determines a winning bidder and an amount to pay.”
Id. at 4 (citing Zschocke Fig. 16; ¶¶ 155–156). The Examiner also finds
Zschocke teaches that “asset providers may be the same as programming
providers (content providers) (par. 55) and content and assets can be
provided via on-demand delivery (VOD) (par. 51 and 58).” Id. Thus, the
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Examiner further finds that Zschocke teaches the limitation “offers the first
asset opportunity to the remaining COD providers” because Zschocke
teaches an auctioning platform that allows “asset providers” to bid on asset
opportunities and also teaches that “asset providers” may be the same as
“content providers.” Final Act. 6; Ans. 4.
Appellant argues the Examiner errs by finding that Zschocke teaches
“asset providers” may be the same as “programming providers” because (1)
Zschocke states they are “stakeholders,” (2) they are “different entities,” (3)
the Examiner is distilling the claim into “a mere gist or thrust,” (4) the
Examiner is equating asset providers to content providers even though their
roles in the claim are “expressly opposite,” and (5) the Examiner “must be
improperly relying on inherency.” Appeal Br. 9–11. We are not persuaded
by Appellant’s arguments.
Although Appellant argues that asset providers and content providers
are “different entities,” we agree with the Examiner’s finding that it was
known in the art before the effective filing date of the application that
“content providers may also be asset providers as disclosed by Zschocke.”
Ans. 5 (citing Zschocke ¶ 55). In describing broadcast networks, paragraph
55 of Zschocke specifically states that “[t]he stakeholders in this regard
include programming providers, asset providers such as advertisers (who
may be the same as or different than the programming providers) . . . .”
Zschocke’s description of content providers and asset providers as
“stakeholders” does not in any way negate or alter the teaching that “asset
providers may also be content providers.”
As noted by the Examiner (see Ans. 5), Appellant admits that “content
providers can advertise services and/or products,” but argues that “if they do,
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the content providers become asset providers” in the claimed system.
Appeal Br. 10. The Examiner “disagrees with this logic,” and so do we.
Ans. 5. In that regard, we agree with the Examiner’s finding that if a content
provider advertises its products or services, it becomes an “asset provider,”
but it does not “stop being a content provider at that time.” Id.
We also are not persuaded by Appellant’s arguments that the
Examiner is distilling the claim into a “mere gist or thrust” and “not
considering the claim as a whole” because the Examiner is equating asset
providers to content providers even though their roles in the claim are
“expressly opposite.” Appeal Br. 10–11. Rather, we agree with the
Examiner’s finding that the claim limitations, and the claim as a whole,
“have been fully considered,” and the claim does not recite that “an asset
provider is opposite from a content provider.” Ans. 5–6. Nor are we
persuaded by Appellant’s argument that the Examiner is improperly relying
on inherency by finding that content providers can act simultaneously as
asset providers because the rejection is for obviousness under § 103 and the
Examiner finds that the disputed limitations of claim 1 are taught or
suggested by the combined teachings of the references. See Ans. 6; Final
Act. 4–7.
2. “direct the ADS to configure asset rankings and removals
according to rules of the second COD provider”
The Examiner finds that the combination of Canney and Zschocke
teaches or suggests “the AOIS being operable to . . . direct the ADS to
configure asset rankings and removals according to rules of the second COD
provider.” Ans. 6–7. In particular, the Examiner finds that Canney teaches
“a campaign manager 121 (asset opportunity information system (AOIS))
that conveys campaign information indicating how and when advertisements
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are to be placed in COD content (rules) such that a COD asset insertion
decision system 101 (asset decision system (ADS)) can rank assets.”
Ans. 7 (citing Canney Fig. 1; ¶¶ 9, 30). The Examiner also finds that
Canney teaches “the asset insertion decision system 101 removes conflicts
and ranks the assets of the asset campaigns 131.” Id. (citing Canney ¶ 51).
The Examiner notes that although Canney characterizes the assets as coming
from “asset providers,” the Examiner relies on Zschocke as teaching that
content providers may also be asset providers.5 Id. (citing Canney ¶ 51).
The Examiner further finds:
Therefore, it would have been obvious to one of ordinary skill in
the art before the effective filing date of the claimed invention to
modify the system of Zeigler and Zschocke by incorporating the
campaign manager 121 that directs an asset decision system to
configure asset rankings and removals according to rules of the
provider as disclosed by Canney, the rules being from a COD
content provider (that is also an asset provider). The motivation
would have been to insert the assets according to a particular
ranking that provides value for the content provider (Canney –
par. 45).
Id.
Appellant’s arguments that the Examiner erred are not persuasive.
First, Appellant argues that the “rules” being used by the Examiner come
from advertisers and not COD content providers as claimed. Appeal Br. 11–
12. This argument is not persuasive because the Examiner relies on the
combined teachings of Canney and Zschocke and finds that although
Canney characterizes the assets as coming from “asset providers,” Zschocke

5 As discussed supra, the Examiner also notes that Appellant agreed in the
Appeal Brief that content providers advertise their products or services.
Ans. 7 (citing Appeal Br. 10).
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teaches, as discussed supra, that “programming providers (content
providers) may also be asset providers.” Ans. 7 (citing Zschocke ¶ 55).
Second, Appellant again argues that by equating asset providers to
content providers, the Examiner is not considering the claim as a whole and
impermissibly distilling it into a mere “gist or thrust,” and that “[c]ontent
providers and asset providers are explicitly different entities” in the claim
and Specification. Appeal Br. 12, 15. For the reasons discussed supra, we
are not persuaded by these arguments.
Third, Appellant argues that Zschocke is not analogous art to the
claimed invention and that the Examiner has inappropriately expanded the
problem associated with Zschocke. Id. at 13. In particular, Appellant argues
that Zschocke is “directed to targeted broadcast advertising to an audience
aggregated according to demographic information,” whereas the “claimed
system sells asset opportunities between content providers in a COD
environment,” and COD is rarely discussed in Zschocke. Id. at 12–13.
Appellant also argues that Zschocke only mentions “the term ‘VOD’ as in
Video On Demand (e.g., COD)” twice as examples of broadcast networks in
which Zschocke’s system may be implemented, but this is “merely a cursory
mention” as Zschocke is directed to live television programming and cable
television using audience aggregation for targeted advertising through set-
top boxes. Id. at 13. We are not persuaded by this argument. Instead, we
agree with the Examiner’s finding that Zschocke is in the field of
Appellant’s endeavor because Zschocke’s invention “relates to the provision
of targeted assets via a network interface and auctioning targeted advertising
media delivery opportunities to asset providers” and “relates to delivery of
video on demand (VOD).” Ans. 7–8 (citing Zschocke ¶¶ 2, 51, 58).
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Accordingly, we also agree with the Examiner’s finding that Zschocke is
analogous art. Id. (citing In re Oetiker, 977 F.2d 1443, 1447 (Fed. Cir.
1992)).
Fourth, Appellant argues that the Examiner has not provided
articulated reasoning with some rational underpinning to support the
conclusion of obviousness, but has “merely provided some global aspiration
of any advertiser as a reason to combine Canney with Zschocke.” Appeal
Br. 13–14. We are not persuaded by this argument because as the Examiner
finds, and we agree, the stated reason for combining the references—“to
insert the assets according to a particular ranking that provides value for the
content provider”—is not a global aspiration, but a specific reason to
combine the references. Ans. 8. In that regard, the Examiner finds, and we
agree, that “by ranking the assets monetary value may be added” (id. (citing
Canney ¶ 45)) and “by ranking the assets the most value (such as money)
may be provided to the content providers” (id. (citing Canney ¶ 33)). Thus,
we find the Examiner has provided “some articulated reasoning with some
rational underpinning” to support the conclusion that this disputed limitation
of claim 1 would have been obvious over the combination of Canney and
Zschocke. See KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 418 (2007).
Accordingly, we are not persuaded the Examiner erred in (1) finding
that the cited references teach or suggest the disputed limitations of claim 1
and (2) concluding that the combined teachings of Ziegler, Zschocke, and
Canney render the subject matter of claim 1 obvious under 35 U.S.C.
§ 103. Thus, we sustain the Examiner’s rejection of claim 1, as well as
claims 2–15.
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CONCLUSION
We affirm the Examiner’s rejection of claims 1–15 under 35 U.S.C.
§ 103 as being unpatentable over the combination of Ziegler, Zschocke, and
Canney.
DECISION SUMMARY

Claims
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1–15 103 Ziegler, Zschocke,
and Canney
1–15

TIME PERIOD FOR RESPONSE
No 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