Jason Canney et al.Download PDFPatent Trials and Appeals BoardMay 13, 20202018006046 (P.T.A.B. May. 13, 2020) Copy Citation 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. Appeal 2018-006046 Application 14/943,559 2 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.”). Appeal 2018-006046 Application 14/943,559 3 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 Appeal 2018-006046 Application 14/943,559 4 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. Appeal 2018-006046 Application 14/943,559 5 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 Appeal 2018-006046 Application 14/943,559 6 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, Appeal 2018-006046 Application 14/943,559 7 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 Appeal 2018-006046 Application 14/943,559 8 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). Appeal 2018-006046 Application 14/943,559 9 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). Appeal 2018-006046 Application 14/943,559 10 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. Appeal 2018-006046 Application 14/943,559 11 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 Copy with citationCopy as parenthetical citation