Viacom International Inc.

Patent Trials and Appeals Board

Mar 26, 2021

2020000182 (P.T.A.B. Mar. 26, 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.
15/886,514 02/01/2018 Gregg William Riedel 40205/07505
(MTV-075CON)
9379
30636 7590 03/26/2021
FAY KAPLUN & MARCIN, LLP
150 BROADWAY, SUITE 702
NEW YORK, NY 10038
EXAMINER
JOHNSON-CALDERON, FRANK J
ART UNIT PAPER NUMBER
2425
NOTIFICATION DATE DELIVERY MODE
03/26/2021 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):
mmarcin@fkmiplaw.com
okaplun@fkmiplaw.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte GREGG WILLIAM RIEDEL,
CHRISTOPHER FULTON HUNDERSMARCK,
SCOTT CHARLES FINDLING, and MICHAEL J. MCMACKIN
Appeal 2020-000182
Application 15/886,514
Technology Center 2400
Before CARL W. WHITEHEAD JR., JEREMY J. CURCURI, and
IRVIN E. BRANCH, Administrative Patent Judges.
BRANCH, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s decision to reject claims 21–40, which are all of the pending
claims. See Final Act. 1. We have jurisdiction under 35 U.S.C. § 6(b).
We affirm.

1 We use the term “Appellant” to refer to “applicant” as defined in 37 C.F.R.
§ 1.42. Appellant identifies the real party in interest as Viacom International
Inc. Appeal Br. 2.
Appeal 2020-000182
Application 15/886,514

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CLAIMED SUBJECT MATTER
The claims are directed to validating that scheduled signaling in an
automation broadcast playlist has been played out. Spec. ¶ 10. Claim 21,
reproduced below, is illustrative of the claimed subject matter:
21. A method, comprising:
receiving a return feed corresponding to a broadcast;
comparing the return feed to a schedule of avail tones for
the broadcast; and
based on the comparing, determining whether the
scheduled avail tones were properly triggered during the
broadcast.
REFERENCES
The prior art relied upon by the Examiner is:
Name Reference Date
Agarwal US 2010/0251289 A1 Sept. 30, 2010
Wilson US 2011/0142417 A1 June 16, 2011
Dion US 2015/0341812 A1 Nov. 26, 2015

REJECTIONS
Claims 35 U.S.C. § Reference
21–23, 25, 27–30,
32, 34–36, 38, 40
102(a)(1) Wilson
24, 31, 37 103 Wilson, Dion
26, 33, 39 103 Wilson, Agarwal

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Application 15/886,514

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OPINION2
We have reviewed the Examiner’s rejections in light of Appellant’s
arguments. We have considered in this Decision only those arguments
Appellant actually raised in the Briefs. Any other arguments Appellant could
have made but chose not to make in the Briefs are deemed to be waived. See
37 C.F.R. § 41.37(c)(1)(iv).
To the extent consistent with our analysis herein, we adopt as our own
the findings and reasons set forth by the Examiner in (1) the action from
which this appeal is taken (Final Act. 3–4) and (2) the Examiner’s Answer in
response to Appellant’s Appeal Brief (Ans. 3–4) and concur with the
conclusions reached by the Examiner. We highlight the following for
emphasis.
Appellant argues
Wilson never compares any of its advertising triggers to any
schedule and is not concerned with or capable of determining if
an advertising trigger was missing or misplaced in any broadcast.
That is, Wilson does not disclose or suggest any “schedule of
avail tones for the broadcast” nor does Wilson describe or
suggest ‘determining whether the scheduled avail tones were
properly triggered during the broadcast,’ as recited in claim 21.
Wilson simply identifies advertising triggers in a recording and
uses any triggers found to insert advertising content into the
recording. This is done without regard to whether or not all of
the avail tones that were scheduled were actually included in a
broadcast and clearly neither shows nor suggests any
determination as to whether such avail tones were broadcast in
conformity with a schedule.

2 Because Appellant argues the rejections of all claims based on arguments
presented with respect to claim 21 (see Appeal Br. 5–6), we review claim 21
and, except for our ultimate conclusion, do not further address the remaining
claims.
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Application 15/886,514

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The Examiner points to paragraphs [0027] and [0056] to
show these steps. However, as indicated in these paragraphs, no
broadcast is monitored to determine whether the avail tones in a
schedule of avail tones were properly triggered. Rather,
recordings on a select number of devices are reviewed to
determine whether recordings of a particular program include
only those advertising triggers corresponding to a specific ad that
is to be replaced. In step 406 the server receives a trigger log data
base from a multimedia processor (DVR) and compares it to an
As Run log created by the advertising insertion device “to verify
that a trigger was received at the advertising insertion device at
the server and at the trigger detection device at the multimedia
end user device.” (Wilson, paragraph [0056]). “The As Run Log
contains data indicating particular advertising data inserted by
the advertising insertion device in the data distribution system.”
(Id.). That is, the As Run Log merely records the triggers that
were inserted into the data distribution system and in no way
indicates that data is ever received or generated that corresponds
to a schedule indicating how many such triggers were supposed
to have been inserted or at what times these triggers were to have
been inserted. The purpose here is clear - the system is looking
for tones corresponding to an ad that is to be replaced so that ad
can be replaced. Nothing in Wilson describes any schedule for
these triggers or any verification that such triggers were inserted
at the scheduled times as required by claim 21. In any case, what
is clear is that no broadcast or return feed is monitored by the
system of Wilson as required by claim 21.
Appeal Br. 4–5.
The Examiner responds as follows:
Wilson teaches [0026, 0027, 0056] that “advertising triggers are
detected and logged” and that “trigger logs for the end user
devices are compared to the Advertising Schedule associated
with the network level”; (10056 and Fig. 4 step 406) trigger log
data base is received at the server (return feed); [0043, 0044, and
Fig. 2] IPTV channels are first broadcast from a server at SHO
(i.e., national level) to an IPTV VHO server, then transmitted to
the IO, then transmitted to the CO and finally to end user devices
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(thus Wilson's content is considered broadcast content.)
Therefore, Wilson compares its advertising triggers to a
schedule. In response to applicant's argument that the references
fail to show certain features of applicant's invention, it is noted
that the features upon which applicant relies (i.e., "determining
if an advertising trigger is missing or misplaced in any
broadcast") are not recited in the rejected claim(s). Although the
claims are interpreted in light of the specification, limitations
from the specification are not read into the claims. See In re Van
Geuns, 988 F.2d 1181, 26 USPQ2d 1057 (Fed. Cir. 1993).
. . .
Wilson teaches [0026, 0027, 0056] a comparison (i.e.,
determining whether they are alike/similar in form/conformity)
of triggers to the schedule. Furthermore, in response to
applicant's argument that the references fail to show certain
features of applicant's invention, it is noted that the features upon
which applicant relies (i.e., "all of the avail tones that were
scheduled were actually included in a broadcast and clearly
neither shows nor suggests any determination as to whether such
avail tones were broadcast in conformity with a schedule" and
"no broadcast is monitored to determine" whether the avails were
properly triggered) are not recited in the rejected claim(s).
Although the claims are interpreted in light of the specification,
limitations from the specification are not read into the claims.
See In re Van Geuns, 988 F.2d 1181, 26 USPQ2d 1057 (Fed. Cir.
1993). The claim simply calls for determining whether the avail
tones/triggers were properly triggered during the broadcast. The
term "properly triggered" is not defined in the claim and under
the broadest reasonable interpretation an avail tone triggering can
be considered as receiving a one that causes an advertisement to
be received. Wilson teaches (Fig. 4 steps 406-412 and 10056 and
10027) compare an advertising schedule to an Advertising As
Run log created by network advertising insertion device in the
data distribution system to the trigger log data base at the server,
to the trigger log data base received from the multimedia
processor end user device and to an advertising schedule to
determine if an advertisement was received. Therefore, Wilson
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Application 15/886,514

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teaches “determining whether the scheduled avail tones were
properly triggered during the broadcast.”
. . .
under the broadest reasonable interpretation “determining,
whether the scheduled avail tones were properly triggered during
the broadcast” can be interpreted to be a determination that
occurs post broadcast. Whereas if claimed differently e.g.,
“determining, during the broadcast, whether the scheduled avail
tones were/are properly triggered” the determination step would
be required to take place during the broadcast (i.e., while the
broadcast is underway.)

Ans. 3–4.
We first note that the claim does not require the return feed to be the
actual broadcast but rather merely requires a return feed that corresponds to
a broadcast. Appeal Br. 7 (“receiving a return feed corresponding to a
broadcast; [and] comparing the return feed to a schedule of avail tones for
the broadcast;”) (emphasis added). This portion of the claim reads on
Wilson’s advertising triggers, which are detected and logged at the end user
device, returned to the server, and compared to the Advertising Schedule.
See Ans. 3 (citing Wilson ¶¶ 26–27, 56); see also Wilson Fig. 4.
We next note the Examiner’s construction of “properly triggered”:
“under the broadest reasonable interpretation ‘determining, whether the
scheduled avail tones were properly triggered during the broadcast’ can be
interpreted to be a determination that occurs post broadcast.” Ans. 5. We
agree with the Examiner’s construction and do not find a persuasive rebuttal
to this construction. See generally Reply Br. We agree with the Examiner’s
further findings as follows:
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The term “properly triggered” is not defined in the claim and
under the broadest reasonable interpretation an avail tone
triggering can be considered as receiving a one that causes an
advertisement to be received. Wilson teaches (Fig. 4 steps 406-
412 and 10056 and 10027) compare an advertising schedule to
an Advertising As Run log created by network advertising
insertion device in the data distribution system to the trigger log
data base at the server, to the trigger log data base received from
the multimedia processor end user device and to an advertising
schedule to determine if an advertisement was received.
Therefore, Wilson teaches “determining whether the scheduled
avail tones were properly triggered during the broadcast.”
Ans. 4.
In view of the foregoing, we are unpersuaded of error in the
Examiner’s anticipation rejection of claim 21.
DECISION SUMMARY
In summary:
Claim(s)
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
21–23, 25,
27–30, 32,
34–36, 38,
40
102(a)(1) Wilson 21–23, 25,
27–30, 32,
34–36, 38,
40

24, 31, 37 103 Wilson, Dion 24, 31, 37
26, 33, 39 103 Wilson, Agarwal 26, 33, 39
Overall
Outcome
21–40

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). See 37 C.F.R.
§ 1.136(a)(1)(iv).
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Application 15/886,514

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AFFIRMED