Reza Jalili et al.

Patent Trials and Appeals Board

Sep 18, 2019

14169851 - (D) (P.T.A.B. Sep. 18, 2019)

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.
14/169,851 01/31/2014 Reza Jalili G86813 1010US.C1 8018
26158 7590 09/18/2019
WOMBLE BOND DICKINSON (US) LLP
ATTN: IP DOCKETING
P.O. BOX 7037
ATLANTA, GA 30357-0037
EXAMINER
MOREAU, AUSTIN J
ART UNIT PAPER NUMBER
2446
NOTIFICATION DATE DELIVERY MODE
09/18/2019 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):
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PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________________
Ex parte REZA JALILI and GREGORY J. CLARY
____________________

Appeal 2018-005917
Application 14/169,851
Technology Center 2400
____________________

Before JUSTIN BUSCH, LINZY T. McCARTNEY, and
BETH Z. SHAW, Administrative Patent Judges.

BUSCH, Administrative Patent Judge.

DECISION ON APPEAL
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s decision to reject claims 10–17, 20–28, and 30–47, which
constitute all the claims pending in this application. We have jurisdiction
over the pending claims 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 Gregory J.
Clary, a co-inventor. Br. 1.
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CLAIMED SUBJECT MATTER
Appellant’s disclosure relates to transmission of data as a continuous
stream in which the recipients can interact with and influence the content.
Spec. 2, Abstract. Embodiments of the disclosed invention allow multiple
users to receive the same streamed content simultaneously (e.g., similar to a
radio or television broadcast), but provide two-way communication so that
the users can interact with the provider in ways that may influence the
subsequent content in the data stream. Spec. 5–6. Claims 10, 22, 31, and 38
are independent claims. Claim 10 is reproduced below:
10. An apparatus comprising:
a device configured to receive a data stream including
content data from a data server, the data server being configured
to provide the same data stream to one or more other devices for
presentation of the same content data by the respective one or
more other devices,
wherein the device is configured to present the content
data of the data stream to a user, the content data including a
plurality of visual elements, the device being configured to
present the content data including being configured to scroll or
slide the visual elements arranged in a position on a screen,
wherein the device is configured to receive an indication
of a user action, or an indication of user interaction with the
content data of the data stream, including the device being
configured to receive a location identifier reflecting a geographic
location for the user,
wherein the device is configured to transmit data
associated with the user action or user interaction, the data server
being configured to adjust the content data of the data stream per
the user action or user interaction, the adjusted content data
including different visual elements or the same visual elements
arranged in a different position, the data including the location
identifier, and the data server being configured to adjust the
content data of the data stream to add the location identifier to
the content data, the adjusted content data including the added
location identifier, and
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wherein the device being configured to receive a data
stream includes being configured to receive the data stream
further including the adjusted content data, and being configured
to present the content data includes being configured to further
present the adjusted content data, the data server being
configured to provide the same data stream to only those of the
one or more other devices in proximity of the user as indicated
by the location identifier for further presentation of the same
adjusted content data by the respective one or more other
devices.

REJECTIONS
Claims 10–14, 16, 17, 22–25, 27, 28, 30–34, 36–41, 43, 44, and 47
stand rejected under 35 U.S.C. § 103 as obvious in view of Morrison (US
2008/0065507 A1; Mar. 13, 2008), Altman (US 2007/0281689 A1; Dec. 6,
2007), and Conrad (US 2006/0212442 A1; Sept. 21, 2006). Non-Final
Act. 4–20.
Claims 15, 26, 35, and 42 stand rejected under 35 U.S.C. § 103 as
obvious in view of Morrison, Altman, Conrad, and Odinak (US
2005/0065779 A1; Mar. 24, 2005). Non-Final Act. 20–22.
Claim 20 stands rejected under 35 U.S.C. § 103 as obvious in view of
Morrison, Altman, Conrad, and Moore (US 2008/0244091 A1; Oct. 2,
2008). Non-Final Act. 22–24.
Claim 21 stands rejected under 35 U.S.C. § 103 as obvious in view of
Morrison, Altman, Conrad, and Saunders (US 7,778,874 B1; Aug. 17,
2010). Non-Final Act. 24–27.
Claims 45 and 46 stand rejected under 35 U.S.C. § 103 as obvious in
view of Morrison, Altman, Conrad, and Smith (US 2010/0118025 A1; May
13, 2010). Non-Final Act. 27–30.
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ANALYSIS
We have reviewed the Examiner’s rejections in light of Appellant’s
arguments that the Examiner erred. In reaching this decision, we have
considered all evidence presented and all arguments Appellant made.
Arguments Appellant could have made, but chose not to make in the Briefs,
are deemed waived. See 37 C.F.R. § 41.37(c)(1)(iv).
Appellant argues the rejection of all pending claims as a group and
refers to claim 10 as representative. See Br. 10–11 (asserting (1) independent
claims 22, 31, and 38 “recite subject matter similar to independent Claim 10,
and the rejection of these claims depends on the above errors”; (2) the
rejection of claims 11–17, 20, 21 23–28, 30, 32–37, and 39–47, which
depend from one of claims 1, 22, 31, and 38, was in error due to this
dependency). We select claim 10 as representative. See 37 C.F.R.
§ 41.37(c)(1)(iv).
The Examiner finds the combination of Morrison, Altman, and
Conrad teaches or suggests every limitation recited in representative claim
10. Non-Final Act. 4–9. Of particular note, the Examiner finds: Morrison
teaches user devices configured to receive and present content (including
adjusted content) from a data stream and configured to receive and transmit
an indication of a user action or interaction with the content; Morrison
teaches a data server “configured to adjust the content data of the data
stream per the user action or user interaction”; Morrison teaches the media
service can use location based services to select which consumers receive
portions of the content or to provide content particularly relevant to certain
users in a geographic area; and Altman discloses user devices configured to
determine their location and transmit a location identifier and data associated
with user action or interaction to a data server, and a data server that adjusts
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content data including the location identifier and provides that content only
to users within a certain proximity to the user. Non-Final Act. 5–6 (citing
Morrison ¶¶ 15, 41–43, 47, 49–50, 60–61, 68–69, 71, Figs. 1A, 6, 13A–
13E), 7–8 (citing Altman ¶¶ 36, 42, 60, 70–71); Ans. 2–8 (additionally citing
Altman ¶ 46, Figs. 4B, 11). The Examiner also provides a rationale for
combining Altman’s with Morrison’s cited teachings. Non-Final Act. 8;
Ans. 4–10.
Appellant argues Altman fails to teach or suggest sending location
information in a data stream because (1) Altman only discloses
synchronizing data by sending information to an updated device, but does
not stream data and (2) Altman attempts to minimize network traffic,
sending updated data to more active users more frequently than less active
users. Br. 7–8. Appellant also argues the proposed combination of Morrison
and Altman and the asserted motivation for combining Morrison and Altman
are deficient. Br. 8–9.
We are not persuaded by Appellant’s arguments that Altman fails to
teach sending information in a data stream because this argument does not
address the Examiner’s findings. Specifically, the Examiner finds Morrison
teaches sending information in a data stream and relies on Altman only to
teach or suggest “combining location data with messaging content data at the
server, and transmitting each user’s location data to the other users based on
user-defined filters.” Non-Final Act. 4–5; Ans. 2–3 (citing Morrison ¶ 7;
Altman ¶¶ 60, 70–71). We agree; as the Examiner notes, Appellant’s
argument does not address the Examiner’s rejection, which is based on a
combination of Morrison and Altman. In re Keller, 642 F.2d 413, 426
(CCPA 1981); see In re Merck & Co., 800 F.2d 1091, 1097 (Fed. Cir. 1986)
(the test for obviousness is whether the combination of references, taken as a
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whole, would have suggested the patentee’s invention to a person having
ordinary skill in the art); see Ans. 3.
Appellant also asserts the Examiner cites to Altman’s disclosure of
synchronizing updated information to teach adjusting data stream content.
Br. 8. Appellant argues the Examiner does not explain how the proposed
combination would work because Altman’s purpose of sending updated
information is to cache critical data with normal device updates, and Altman
does not disclose using location information to filter the updated information
it sends to group members. Br. 8–9.
Contrary to Appellant’s argument, see Br. 8, the Examiner does find
Altman teaches filtering updated information to group members based on
location. Non-Final Act. 7–8 (citing Altman ¶¶ 42, 60, 70–71); Ans. 4–5.
We agree. Altman discloses specifying a “radius of the group members
relative to the user’s mobile communication device” that can be used to send
messages or alerts to “members who are within a certain proximity to the
user,” which “takes advantage of the geographic location information.”
Altman ¶ 42. Altman discloses this location information also may “be
employed by the client computer 106 when it accesses the database.”
Altman ¶ 42 (emphasis added). Therefore, we agree with the Examiner that
Altman teaches or suggests filtering updated information to group members
based on location because Altman discloses a server transmitting messages
or alerts to only those users within a certain proximity of the user.
Additionally, as noted above, the Examiner does not find Altman’s
synchronization feature teaches adjusting data stream content. Moreover,
although certain of Altman’s portions the Examiner cites relate to the
synchronization feature, we disagree with Appellant’s characterization that
Altman’s “purpose of the updated information is used in ‘an intelligent
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caching and synchronization function that caches critical data with normal
updates to each mobile communication device in the network.’” Br. 8–9
(quoting Altman ¶ 69, emphasis added). Altman’s purpose is to integrate
location information into mobile phone communication, including providing
an interactive map display on mobile devices depicting the location of
various individuals in a social network. See Altman ¶¶ 2, 4, 26–29, Abstract.
Given Altman’s disclosure of filtering which information is provided to
users based on another user’s location, Appellant fails to explain
persuasively why, even assuming all embodiments of Altman include this
synchronization feature, “one skilled in the art would not in fact modify
Morrison in view of Altman to filter updated information to group members
by radius.” See Br. 9.
Finally, we also are unpersuaded by Appellant’s assertions that the
Examiner’s proposed modification and reason for combining the teachings
from Altman and Morrison are deficient. See Br. 8–10. Appellant argues the
Examiner fails to provide a supported reason for combining Morrison and
Altman because all benefits allegedly attained from the proposed
combination are present in Altman alone. Br. 9. Appellant contends “the
Examiner’s purported combination would be satisfied by Altman alone, and
would not require any modification of Morrison” and “[f]or both the alleged
combination and motivation for that combination, one skilled in the art need
not look beyond Altman.” Br. 9.
However, this argument fails to apprise us of Examiner error. The
Examiner provides a reason with a rational underpinning for combining the
teachings from Morrison and Altman. See KSR Int’l Co. v. Teleflex Inc., 550
U.S. 398, 418 (2007). Specifically, the Examiner determines it would have
been obvious to include Altman’s transmission of individual users’ location
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identifiers to other users within a certain proximity of the user to allow all
users to share information and experiences based on each user’s established
filters and preferences relating to location information. Non-Final Act. 8
(citing Altman ¶¶ 28, 42, 60); Ans. 4–8 (additionally citing Altman ¶¶ 36,
41, 46, 68, 70–71, Figs. 4B, 11; Morrison ¶¶ 7, 15, Abstract), 9–10.
The Examiner further explains that Altman’s cited sections disclose
sending messages and alerts only to members within a certain proximity of a
user and Morrison teaches using location based services to select which
users will receive particular content portions in order to customize content so
that it is particularly relevant to users in a certain location. Ans. 5–6. The
Examiner notes Morrison fails to explicitly disclose providing the location
identifier in the content, but Altman teaches providing the location
information to facilitate location-based social interaction. Ans. 6–7, 9.
The Examiner finds Morrison teaches transmitting “secondary content
such as images, video, text, SMS messages, MMS messages, etc.,” along
with primary content to multiple users and combining Altman’s teachings
with Morrison “provides an additional degree of communication filtering
that takes advantage of the geographic location information.” Ans. 6–7, 9.
The Examiner further explains that the proposed combination would allow
users to select recipients of a message, which would be incorporated into
Morrison’s secondary content, based on the whether the other users are
within a specific proximity based on the location information received from
the other users. Ans. 9–10; see also Altman ¶ 42 (disclosing that a client
computer may use the location information).
The Examiner explained that Morrison teaches transmitting from
combining secondary content (e.g., user messages) with primary content in a
data stream and targeting particular users within a certain proximity or
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geographic location of another user using location based services. The
Examiner explained the benefits of including the location based information
in the data stream taught by Altman and that this technique would have
provided similar benefits when integrated with Morrison. See KSR Int’l Co.
v. Teleflex Inc., 550 U.S. 398, 416 (2007) (combination of familiar elements
according to known methods is likely to be obvious when it does no more
than yield predictable results). Appellant did not file a reply brief to respond
to the Examiner’s further explanation of the rationale for combining
Morrison and Altman.
For the above reasons, on this record, we are not persuaded the
Examiner erred in rejecting representative claim 10 as obvious in view of the
combination of Morrison, Altman, and Conrad. For the same reasons, we are
not persuaded the Examiner erred in rejecting claims 11–18, 20–28, and 30–
47, not argued separately with particularity.
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CONCLUSION
In summary:
Claims
Rejected
Basis Affirmed Reversed
10–14, 16, 17, 22–
25, 27, 28, 30–34,
36–41, 43, 44, 47
§ 103 Morrison,
Altman, Conrad
10–14, 16, 17, 22–
25, 27, 28, 30–34,
36–41, 43, 44, 47

15, 26, 35, and 42 § 103 Morrison,
Altman, Conrad,
Odinak
15, 26, 35, and 42
20 § 103 Morrison,
Altman, Conrad,
Moore
20
21 § 103 Morrison,
Altman, Conrad,
Saunders
21
45, 46 § 103 Morrison,
Altman, Conrad,
Smith
45, 46
Overall Outcome 10–17, 20–28, 30–47

AFFIRMED