2020004547 (P.T.A.B. Nov. 8, 2021)

THOMSON Licensing

Patent Trials and Appeals BoardNov 8, 2021

2020004547 (P.T.A.B. Nov. 8, 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. 15/756,911 03/01/2018 Mark Francis RUMREICH 2014P00138WOUS 6092 157360 7590 11/08/2021 InterDigital CE Patent Holdings, SAS 200 Bellevue Parkway Suite 300 Wilmington, DE 19809 EXAMINER HUERTA, ALEXANDER Q ART UNIT PAPER NUMBER 2425 NOTIFICATION DATE DELIVERY MODE 11/08/2021 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): donna.foligno@interdigital.com maggie.clark@interdigital.com patentops.us@interdigital.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________________ Ex parte MARK FRANCIS RUMREICH, JOEL M. FOGELSON, and THOMAS EDWARD HORLANDER ____________________ Appeal 2020-004547 Application 15/756,911 Technology Center 2400 ____________________ Before JOHNNY A. KUMAR, JUSTIN BUSCH, and JASON J. CHUNG, Administrative Patent Judges. KUMAR, Administrative Patent Judge. DECISION ON APPEAL Appellant1 appeals under 35 U.S.C. § 134(a) from the Examiner’s final rejection of claims 1, 3–11, and 13–23. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. Appellant’s Invention Appellant’s invention relates to a method and system for media content control based on attention detection. See Spec. 1:14–15. 1 We use the word “Appellant” to refer to “applicant” as defined in 37 C.F.R. § 1.42. According to Appellant, INTERDIGITAL CE PATENT HOLDINGS is the real party in interest. Appeal Br. 3. Appeal 2020-004547 Application 15/756,911 2 Illustrative Claim Claim 1, reproduced below (bracketed material added), is representative of the subject matter on appeal. 1. A method, comprising: [a] receiving first user information about media content provided to a plurality of users over a period of time, wherein the first user information is received from one or more sensors; [b] determining attention values about media content for each of the plurality of users based on the received first user information; [c] analyzing changes in the determined attention values for each of the plurality of users based on a second user information indicative of user preference; and [d] providing a media control operation for application to the media content based on the analyzed attention values for the plurality of users. Appeal Br. 11 (Claims App.). REFERENCES AND REJECTIONS Claims 1, 3–5, 8–11, 13–15, and 18–23 are rejected under 35 U.S.C. § 103 as being unpatentable over Kegel (WO 2007/113580 A1, Oct. 11, 2007) in view of Gutta (US 2002/0144259 A1, Oct. 3, 2002). Final Act. 7–12. Claims 6, 7, 16, and 17 are rejected under 35 U.S.C. § 103 as being unpatentable over Kegel in view of Gutta, and in further view of Treadwell (US 2012/0324492 A1, Dec. 20, 2012). Final Act. 12–14. Appeal 2020-004547 Application 15/756,911 3 Appellant’s Contentions2 Appellant contends that the Examiner erred in rejecting claim 1 under 35 U.S.C. § 103(a), because: [1] Kegel does not disclose “determining attention values about media content”, “analyzing changes to the determined attention values for each of the plurality of users based on a second user information indicative of user preference” or “providing a media control operation for application to the media content based on the analyzed attention values” [(hereinafter “first contention”)]. . . . . [2] Gutta discloses controlling a media player based on individual user activity (see, Gutta at paragraph [0001]). The media player is controlled based on individual user profile rules (see, Gutta at paragraph [0019]). Each individual profile rule includes predefine criteria under which the rule is triggered (see, Gutta at paragraph [0022]). Therefore, Gutta does not disclose or suggest at least the feature of: “providing a media control operation for application to the media content based on the analyzed attention values for the plurality of users” [(hereinafter “second contention”)]. Appeal Br. 7–8 (bolding omitted) (bracketed material added). Issue Did the Examiner err in rejecting claim 1 under 35 U.S.C. § 103(a) as being obvious because the combination fails to teach or suggest the argued limitations? 2 Throughout this Decision, we refer to the Appeal Brief filed Oct. 9, 2019 (“Appeal Br.”); Final Office Action mailed Apr. 11, 2019 (“Final Act.”); and the Examiner’s Answer mailed Jan. 22, 2020 (“Ans.”). Appeal 2020-004547 Application 15/756,911 4 Analysis3 We have reviewed the Examiner’s rejection in light of Appellant’s arguments that the Examiner has erred. We disagree with Appellant’s conclusions. The Examiner has provided a comprehensive response, supported by sufficient evidence, to each of the contentions raised by Appellant. We adopt as our own the findings and reasons set forth by the Examiner in the Answer in response to Appellant’s Appeal Brief (see Ans. 3–8). We highlight and address specific findings and arguments regarding representative claim 1 for emphasis as follows. The Examiner finds that Kegel teaches all elements of exemplary claim 1 (Final Act. 7–8; Ans. 3–8), except for element [c] for which the Examiner relies upon Gutta (Final Act. 8). As to Appellant’s first contention, Appellant’s arguments in the Appeal Brief are deficient because the argument does not rebut distinctly and specifically the Examiner’s findings regarding the Kegel reference. In order to rebut a prima facie case of unpatentability, Appellant must point out the supposed Examiner errors distinctly and specifically, and the specific distinctions believed to render the claims patentable over the applied references. See 37 C.F.R. § 41.37(c)(1)(iv) (“A statement which merely points out what a claim recites will not be considered an argument for separate patentability of the claim.”); see also In re Lovin, 652 F.3d 1349, 1357 (Fed. Cir. 2011) (“[W]e hold that the Board reasonably interpreted Rule 41.37 to require more substantive arguments in an appeal brief than a 3 Independent claim 11 is argued together with claim 1. Appeal Br. 7–8. Claims 3–10 and 13–23 are not argued separately from claims 1 and 11 and will not be addressed separately. Appeal 2020-004547 Application 15/756,911 5 mere recitation of the claim elements and a naked assertion that the corresponding elements were not found in the prior art.”); cf. In re Baxter Travenol Labs., 952 F.2d 388, 391 (Fed. Cir. 1991) (“It is not the function of this court to examine the claims in greater detail than argued by an appellant, looking for [patentable] distinctions over the prior art.”). We note that although Appellant is not required to file a Reply Brief, no Reply Brief is of record to rebut the Examiner’s responses in the Answer to Appellant’s arguments. As to Appellant’s second contention, the Examiner finds that Kegel, rather than Gutta, teaches the disputed element [d]. See Final Act. 7.4 Therefore, Appellant’s arguments (see supra § Appellant’s Contentions) amount to a misplaced attack on Gutta, where the Examiner instead relies upon Kegel to teach the disputed limitation [d]. One cannot show nonobviousness by attacking references individually where the rejections are based on combinations of references. In re Keller, 642 F.2d 413, 426 (CCPA 1981); In re Merck & Co., 800 F.2d 1091, 1097 (Fed. Cir. 1986). Based on this record, Appellant does not persuade us of error in the Examiner’s rejection of independent claims 1 and 11, and claims 3–10, and 13–23 not substantively argued (Appeal Br. 7–9). 4 In other words, the Examiner relies on Gutta to teach the limitation “analyzing changes to the determined attention values for each of the plurality of users based on a second user information indicative of user preference” but not the limitation “providing a media control operation for application to the media content based on the analyzed attention values for the plurality of users,” for which the Examiner relies on Kegel. Final Act. 7–8. Appeal 2020-004547 Application 15/756,911 6 CONCLUSION The Examiner did not err in rejecting claims 1, 3–11, and 13–23 under 35 U.S.C. § 103(a) over the combined teachings and suggestions of the cited references. DECISION SUMMARY In summary: Claim(s) Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 1, 3–5, 8–11, 13–15, 18–23 103(a) Kegel, Gutta 1, 3–5, 8–11, 13–15, 18–23 6, 7, 16, 17 103(a) Kegel, Gutta, Treadwell 6, 7, 16, 17 Overall Outcome 1, 3–11, 13–23 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. § 1.136(a)(1)(iv). AFFIRMED