Viacom International Inc.

Patent Trials and Appeals Board

Jan 28, 2022

2020006361 (P.T.A.B. Jan. 28, 2022)

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. 16/191,219 11/14/2018 Caroline EPSTEIN 40205/08502 (MTV-085CON) 4473 30636 7590 01/28/2022 FAY KAPLUN & MARCIN, LLP 150 BROADWAY, SUITE 702 NEW YORK, NY 10038 EXAMINER DUBASKY, GIGI L ART UNIT PAPER NUMBER 2421 NOTIFICATION DATE DELIVERY MODE 01/28/2022 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 CAROLINE EPSTEIN and FABIO LUZZI Appeal 2020-006361 Application 16/191,219 Technology Center 2400 Before JEAN R. HOMERE, ADAM J. PYONIN, and PHILLIP A. BENNETT, Administrative Patent Judges. HOMERE, Administrative Patent Judge. DECISION ON APPEAL I. STATEMENT OF THE CASE1 Pursuant to 35 U.S.C. § 134(a), Appellant2 appeals from the Examiner’s decision to reject claims 21-38. Appeal Br. 1. We have jurisdiction under 35 U.S.C. § 6(b). We affirm. 1 We refer to the Specification, filed Nov. 14, 2018 (“Spec.”); Final Office Action, mailed Jan. 3, 2020 (“Final Act.”); Appeal Brief, filed May 26, 2020 (“Appeal Br.”); Examiner’s Answer, mailed Sep 3, 2020 (“Ans.”); and Reply Brief, filed Sep. 10, 2020 (“Reply Br.”). 2 “Appellant” refers to “Applicant” as defined in 37 C.F.R. § 1.42(a). Appellant identifies the real party in interest as Viacom International, Inc. Appeal Br. 2. Appeal 2020-006361 Application 16/191,219 2 II. CLAIMED SUBJECT MATTER According to Appellant, the claimed subject matter relates to a method and system for predicting audience measurements, such as ratings, of a television program. Spec. ¶ 5. Figure 1, reproduced below, is useful for understanding the claimed subject matter: Figure 10 above depicts ratings prediction system 100 including computing device 1050 utilizing modeling server 1040 that filters historical program ratings from a plurality of networks to predict the ratings for a new program that has yet to be aired. Spec. ¶¶ 44, 45, 65, 66. Appeal 2020-006361 Application 16/191,219 3 Independent claim 21, with disputed limitations emphasized, is illustrative: 21. A method, comprising: at a predictive modeling server: identifying each of a plurality of programs; identifying each of a plurality of networks, each of the networks having aired a subset of the programs; receiving a network ratings value corresponding to a broadcast of one of the programs on one of the networks; identifying one of the programs that has not aired on a selected one of the networks; and determining a predicted network ratings value for the identified program on the selected network by collaboratively filtering the network ratings values. Appeal Br. 10 (emphasis added). III. REFERENCES The Examiner relies upon the following references as evidence.3 Name Reference Date Chaar US 2017/0064395 A1 Mar. 2, 2017 IV. REJECTION The Examiner rejects claims 21-38 under 35 U.S.C. § 102 as anticipated by Chaar. Final Act. 3-6. V. ANALYSIS We consider Appellant’s arguments seriatim, as they are presented in the Appeal Brief, pages 4-9 and the Reply Brief, pages 2-7.4 We are 3 All reference citations are to the first named inventor only. 4 We have considered in this Decision only those arguments Appellant actually raised in the Briefs. Arguments not made are forfeited. See Appeal 2020-006361 Application 16/191,219 4 unpersuaded by Appellant’s contentions. Except as otherwise indicated herein below, we adopt as our own the findings and reasons set forth in the Final Action, and the Examiner’s Answer in response to Appellant’s Appeal Brief.5 Final Act. 2-6; Ans. 3-9. However, we highlight and address specific arguments and findings for emphasis as follows. Appellant argues that the Examiner errs in finding that Chaar anticipates claim 21. Appeal Br. 4-9. In particular, Appellant argues that because Chaar relates to optimizing the scheduling of programs, Chaar does not describe analyzing a program that has not aired on a target network, as recited in independent claim 21. Id. at 4-6. According to Appellant, Chaar discloses using historical ratings data to rearrange the scheduling of existing programs thereby optimizing the viewer’s ratings of programs that have already aired (not un-aired programs) on a network. Id. at 6-8 (citing Chaar ¶¶ 22, 23, 45. 49-52, 59 89, 90). Reply Br. 2. Appellant’s arguments are not persuasive of reversible Examiner error. As an initial matter, we note the Examiner’s findings with respect to paragraphs 96 and 109 of Chaar are undisputed by Appellant. Ans. 8-9. In particular, Chaar states the following: When the programmer receives a new program, the programmer may utilize the framework for audience rating 37 C.F.R. § 41.37(c)(1)(iv) (2017). 5 See ICON Health and Fitness, Inc. v. Strava, Inc., 849 F.3d 1034, 1042 (Fed. Cir. 2017) (“As an initial matter, the PTAB was authorized to incorporate the Examiner’s findings.”); see also In re Brana, 51 F.3d 1560, 1564 n.13 (Fed. Cir. 1995) (upholding the PTAB’s findings, although it “did not expressly make any independent factual determinations or legal conclusions,” because it had expressly adopted the examiner’s findings). Appeal 2020-006361 Application 16/191,219 5 estimation to generate estimates based on parameters that may be utilized for similar programs. Accordingly, regardless of whether the programmer may be moving, switching, tweaking, adjusting, and/or shuffling the placement of one or more programs, the framework for audience rating estimation may be utilized to estimate the impact on the audience or viewership with a certain statistical confidence. ¶ 0096 (emphasis added). In accordance with an aspect of the disclosure, the framework for audience rating estimation may be operable to handle new programs and may be operable to generate estimated audience or viewership for the new programs. ¶ 109 (emphasis added). We agree with the Examiner that Chaar’s disclosure of a framework for audience rating estimation of new programs based on performance parameters of historical programs describes that the framework may be utilized to estimate the ratings of programs that have not yet aired on a network. Ans. 8-9. Because we are not persuaded of Examiner error, we sustain the Examiner’s rejection of claim 21 as anticipated by Chaar. Regarding the rejections of claims 22-38, Appellant either does not present separate patentability arguments or reiterates substantially the same arguments as those discussed above for the patentability of claim 21. As such, claims 22-38 fall therewith. See 37 C.F.R. § 41.37(c)(1)(iv). VI. CONCLUSION On this record, we affirm the Examiner’s rejections of claims 21-38. VII. DECISION SUMMARY Appeal 2020-006361 Application 16/191,219 6 In summary: Claim(s) Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 21-38 102 Chaar 21-38 VIII. 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)(1). See 37 C.F.R. § 1.136(a)(1)(iv). AFFIRMED