Adobe Inc.

Patent Trials and Appeals Board

Jul 2, 2020

2019004819 (P.T.A.B. Jul. 2, 2020)

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.
14/630,418 02/24/2015 Michael A. Marth P5240-US-ORG4 1022
108982 7590 07/02/2020
SBMC
116 W. Pacific Avenue
Suite 200
Spokane, WA 99201
EXAMINER
ANDREI, RADU
ART UNIT PAPER NUMBER
3682
NOTIFICATION DATE DELIVERY MODE
07/02/2020 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):
docket@sbmc-law.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte MICHAEL A. MARTH, KEN BEATON, and
PRADHAN S. RAO
Appeal 2019-004819
Application 14/630,418
Technology Center 3600
Before JOHNNY A. KUMAR, JENNIFER S. BISK, and JOYCE CRAIG,
Administrative Patent Judges.
BISK, Administrative Patent Judge.
DECISION ON APPEAL1

1 Throughout this Decision we have considered the Specification filed
February 24, 2015 (“Spec.”), the Final Rejection mailed October 16, 2018
(“Final Act.”), the Appeal Brief filed March 6, 2019 (“Appeal Br.”), the
Examiner’s Answer mailed April 15, 2019 (“Ans.”), and the Reply Brief
filed May 31, 2019 (“Reply Br.”).
Appeal 2019-004819
Application 14/630,418

2
STATEMENT OF THE CASE
Pursuant to 35 U.S.C. § 134(a), Appellant2 appeals from the
Examiner’s decision to reject claims 1–5, 7–11, 13–15, and 21–27. See
Final Act. 1. We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.
CLAIMED SUBJECT MATTER
The claims are directed to content creation and deployment
collaboration techniques. Spec. ¶ 4. Claims 1, 10, and 21 are independent.
Claim 1, reproduced below, is illustrative of the claimed subject matter:
1. In a digital medium environment for creating a marketing
activity, where the marketing activity involves creation of
content as part of the marketing activity, a system to create the
content comprising:
one or more processors;
one or more computer readable storage media storing
instructions that, responsive to execution by the one or more
processors, implement one or more modules to perform
operations comprising:
controlling functionality of a content creation
service that is exposed to a content creator via a network
to create content using one or more tools provided by the
content creation service;
tracking deployment of the content created by the
content creator with the content creation service, through
the use of a tracking monitor for each item of content that
monitors a number of interactions with a marketing
activity the content has been used in, the content created

2 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 Adobe, Inc. Appeal
Br. 3.
Appeal 2019-004819
Application 14/630,418

3
by the content creator comprising more than one item of
content;
determining a level of a plurality of levels of
deployment, as part of one or more marketing activities, of
the content created by the content creator, each of the
plurality of levels of deployment indicating a threshold
number of interactions with the content created by the
content creator; and
associating a badge with a user profile of the content
creator in a user interface of the content creation service
that is indicative of the level of deployment of the content
created by the content creator.
REFERENCE
The prior art relied upon by the Examiner is:
Name Reference Date
O’Donnell US 9,396,279 B1 July 19, 2016
Jablonski US 2007/0180523 A1 Aug. 2, 2007
Gausereide US 2011/0008017 A1 Jan. 13, 2011
Garcia US 2014/0089322 A1 Mar. 27, 2014
Dudas WO 2008/033840 A2 Mar. 20, 2008
REJECTIONS3
Claims 1–5, 7–11, 13–15, 21–24, and 274 are rejected under 35 U.S.C.
§ 103(a) as being unpatentable over Dudas, O’Donnell, and Jablonski. Final
Act. 7–23.

3 The Examiner also rejected claims 1–5, 7–11, 13–15, and 21–27 under
35 U.S.C. § 101 and claim 15 under 35 U.S.C. § 112(a). Final Act. 2–6.
The Examiner withdrew these rejections in the Answer. Ans. 3. Upon
further prosecution, the Examiner may wish to reconsider whether the claims
are directed to non-patentable subject matter under 35 U.S.C. § 101.
4 The Examiner lists claims 1–15, 21–24, and 27 in this rejection (Final Act.
7), but claims 6 and 12 have been canceled (Appeal Br. 38, 40 (Claims
App.)).
Appeal 2019-004819
Application 14/630,418

4
Claim 25 is rejected under 35 U.S.C. § 103(a) as being unpatentable
over Dudas, O’Donnell, Jablonski, and Gausereide. Final Act. 23–24.
Claim 26 is rejected under 35 U.S.C. § 103(a) as being unpatentable
over Dudas, O’Donnell, Jablonski, and Garcia. Final Act. 24–26.
OPINION
We review the appealed rejections for error based upon the issues
identified by Appellant, and in light of the arguments and evidence produced
thereon. Ex parte Frye, 94 USPQ2d 1072, 1075 (BPAI 2010) (precedential).
To the extent Appellant has not advanced separate, substantive arguments
for particular claims, or other issues, such arguments are waived. 37 C.F.R.
§ 41.37(c)(1)(iv).
We have considered all of Appellant’s arguments and any evidence
presented. We highlight and address specific findings and arguments for
emphasis in our analysis below.
Rejection of Claims 1–5, 7–11, 13–15, 21–24, and 27 under 35 U.S.C. § 103
The Examiner rejects claims 1–5, 7–11, 13–15, 21–24, and 27 as
obvious over the combination of Dudas, O’Donnell, and Jablonski. Final
Act. 7–23. Specifically, the Examiner relies on Dudas as teaching the
majority of the limitations (Final Act. 7–8), but relies on O’Donnell “to
illustrate the functionality of a badge in the same or similar context” (id. at
8) and on Jablonski “to illustrate the functionality of tracking deployment of
content in the same or similar context” (id. at 9).
Appellant argues that O’Donnell does not teach or suggest a badge as
recited in claims 1, 10, and 21. Appeal Br. 26–30, 33–35; Reply Br. 4–9.
According to Appellant, “O’Donnell would have no use for ‘a badge’ as
Appeal 2019-004819
Application 14/630,418

5
claimed” because “O’Donnell describes tracking and displaying markups of
webpages and content of webpages by various users.” Id. at 29–30.
Appellant does not point to, nor do we find, any definition of the
claim term “badge” in the Specification. The Specification states that
“[b]adges may also be configured for association with respective items of
content and/or user profiles of content creators.” Spec. ¶ 5. The
Specification also states that “badges may be indicative of an amount of
deployment of the content as part of one or more marketing activities, e.g.,
associated with particular levels, includ[ing] a counter indicating a number
of uses in a marketing activity” and “may also be indicative that may be
awarded based on thresholds, content type, views, downloads, purchases,
output channels, length of service, length of asset in service, content creation
service peer or deployment referrals, social network usages and mentions . . .
and so on.” Id. ¶ 45. Further, the Specification two example scenarios of
using badges as (1) associated with content items to indicate a counter
indicating interactions as part of a marketing activity, or (2) associated with
user accounts to indicate deployment of content created by the content
creator as part of one or more marketing activity. Id. Fig. 6 (showing
examples of badges 628, 630, and 632 associated with respective content
items, and badges 634 and 636 general badges associated with the creator),
¶¶ 80–84; see also id. Fig. 30, ¶¶ 45, 56, 71, 76, 138, 139. According to the
Specification, “badges may be utilized to encourage participation by content
creators as part of the online social-media based portfolio service as well as
marketers in determining a reputation of content creators to locate content
creators of interest.” Id. ¶ 139.
Appeal 2019-004819
Application 14/630,418

6
Given these uses of the term badge in the Specification, the Examiner
turns to a dictionary to construe the term as “a vehicle to make visible
information related to a certain piece of content, e.g. the amount of
deployment.” Ans. 4 (quoting Merriam-Webster dictionary, Spec ¶ 45).
Appellant does not explicitly dispute this construction, arguing instead that
the Examiner’s reliance on the dictionary definition and discussion of the
use of the term badge in the Specification (i.e., the Examiner’s explicit claim
construction) occurs for the first time in the Answer and “the Examiner may
not rely on Appellant’s specification as being prior art unless Appellant
admits that the relied upon portions of Appellant’s specification are prior
art.” Reply Br. 7–8.
We agree that the Specification and claims use the term badge in a
very broad manner consistent with the dictionary definitions. Specifically,
we find that the term badge, as used in the claims, encompasses indicating,
to users, information related to a certain piece of content or a particular user
account. Spec. ¶¶ 45, 56, 71, 76, 80–84, 138, 139. This information
includes, but is not limited to, the number of deployments of content and/or
the number of interactions with that content in marketing activities. Id.
Moreover, we note that, although it shows several non-limiting examples
(for example, in Figure 6), the Specification does not limit the ways such
information may be indicated to a user. For example, the information may
be visibly displayed using icons or text or a combination of the two.
Based on this understanding of the term badge, we agree with the
Examiner that O’Donnell teaches or suggests a badge. For example, we
agree that icon 1081 indicating a “desired markup” and 1083 displaying
Appeal 2019-004819
Application 14/630,418

7
“identification of the user and a date time stamp” shown in O’Donnell
Figure 10B qualify as badges. O’Donnell, Fig. 10B, 14:8–30.
Appellant also argues that the cited references do not teach or suggest
“number of interactions with the content” as recited by claim 1 or “number
of times the content has been accessed” (the “number limitation”) as recited
by claims 10 and 21. Appeal Br. 31–33. According to Appellant, “Jablonski
merely describes a publisher could count the number of accesses by distinct
consumers,” which is different from the claim language. Id. at 33.
The Examiner cites to several references as teaching this limitation,
which occurs twice within claim 1. See, e.g., Appeal Br. 37:13, 17 (claim
1), 39 (claim 10), 40–41 (claim 21). First, the Examiner points to Dudas’s
disclosure of remixes. Final Act. 7–8 (citing Dudas ¶¶ 16, 171–175); Ans.
6–7 (citing Dudas ¶¶ 16, 24, 26, 27, 88, 89, 94, 171–175). Second, the
Examiner points to Jablonski’s disclosure of tags including dynamic usage-
tracking information. Final Act. 9 (citing Jablonski Abstract, claims 1, 10,
¶¶ 10, 11, 20); Ans. 8–9.
We, therefore, do not agree with Appellant’s contention that “[t]he
Examiner admits that Dudas does not disclose these features.” Appeal Br.
31–32. In the Reply Brief Appellant also does not address the Examiner’s
reliance on Dudas as teaching or suggesting the number limitation.
Moreover, we agree with the Examiner that Jablonski teaches or suggests the
number limitation because it explicitly states that it tracks “usage of on-line
content.” Jablonski Abstract. Appellant does not point to, nor do we see,
where Jablonski limits that usage to distinct consumers. See Jablonski
¶¶ 10–11. Even if Jablonski’s teaching is so limited, Appellant does not
point to, nor do we see, any limit in the claim language or Specification that
Appeal 2019-004819
Application 14/630,418

8
requires the number limitation to count all interactions by users. Instead,
this limitation is broad enough to include counts of distinct consumer usage.
Accordingly, we are not persuaded of error in the Examiner’s
rejection of claim 1, 10, and 21 as obvious over the combination of Dudas,
O’Donnell, and Jablonski. Appellant does not make any additional
arguments for claims 1–5 and 7–9, which depend from claim 1, claims 11,
13–15, and 27, which depend from claim 10, or claims 22–24, which depend
from claim 21. Appeal Br. 35. Accordingly, we are not persuaded of error
in the Examiner’s rejection of claims 2–5, 7–9, 13–15, 22–24, and 27 as
obvious over the combination of Dudas, O’Donnell, and Jablonski.
Claim 25
The Examiner rejects dependent claim 25 over Dudas, O’Donnell,
Jablonski, and Gausereide. Final Act. 23–24. Claim 25 depends from claim
21. Appellant does not make additional arguments for claim 25. Appeal Br.
35–36. Accordingly, we are not persuaded of error in the Examiner’s
rejection of claim 25 as obvious over the combination of Dudas, O’Donnell,
Jablonski, and Gausereide.
Claim 26
The Examiner rejects dependent claim 26 over Dudas, O’Donnell,
Jablonski, and Garcia. Final Act. 24–26. Claim 26 depends from claim 1.
Appellant does not make additional arguments for claim 26. Appeal Br. 36.
Accordingly, we are not persuaded of error in the Examiner’s rejection of
claim 26 as obvious over the combination of Dudas, O’Donnell, Jablonski,
and Garcia.
Appeal 2019-004819
Application 14/630,418

9
CONCLUSION
We affirm the Examiner’s rejections.
DECISION SUMMARY
Claims
Rejected
35
U.S.C.
§
Basis/
Reference(s)
Affirmed Reversed
1–5, 7–11,
13–15,
21–24, 27
103(a) Dudas, O’Donnell,
Jablonski
1–5, 7–11,
13–15, 21–
24, 27

25 103(a) Dudas, O’Donnell,
Jablonski, Gausereide
25
26 103(a) Dudas, O’Donnell,
Jablonski, Garcia
26
Overall
Outcome
1–5, 7–11,
13–15, 21–
27

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)(iv). See 37
C.F.R. § 41.50(f).
AFFIRMED