ADOBE INC.

Patent Trials and Appeals BoardJan 12, 2021

2020005530 (P.T.A.B. Jan. 12, 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. 14/842,333 09/01/2015 CRAIG M. MATHIS P5470-US/39913.235191 5595 121363 7590 01/12/2021 Shook, Hardy & Bacon L.L.P. (Adobe Inc.) Intellectual Property Department 2555 Grand Blvd Kansas City, MO 64108 EXAMINER HOAR, COLLEEN A ART UNIT PAPER NUMBER 3621 NOTIFICATION DATE DELIVERY MODE 01/12/2021 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): seaton@shb.com shbdocketing@shb.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte CRAIG M. MATHIS ____________ Appeal 2020-005530 Application 14/842,333 Technology Center 3600 ____________ Before KARA L. SZPONDOWSKI, SCOTT B. HOWARD, and STEVEN M. AMUNDSON, Administrative Patent Judges. HOWARD, Administrative Patent Judge. DECISION ON APPEAL Appellant1 appeals under 35 U.S.C. § 134(a) from the Examiner’s Non-Final Rejection of claims 1–3, 5–15, and 17–20, which constitute all of the claims pending in this application. We have jurisdiction under 35 U.S.C. § 6(b). See Ex parte Lemoine, 46 USPQ2d 1420, 1423 (BPAI 1994) (precedential). We affirm in part. 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 Adobe Inc. Appeal Br. 3. Appeal 2020-005530 Application 14/842,333 2 THE INVENTION The disclosed and claimed invention is directed to “automatically generating marketing assets from asset components that include portions of marketing content having asset features relevant to target users.” Spec. ¶ 5.2 Claim 1, reproduced below, is illustrative of the claimed subject matter: 1. One or more computer storage media storing computer- useable instructions that, when used by one or more computing devices, cause the one or more computing devices to perform operations comprising: receiving a request for a marketing asset for delivery to a user device associated with a user; identifying one or more user attributes of the user; selecting a plurality of asset features based on the one or more user attributes; accessing a database of asset components in which each asset component in the database is tagged with one or more asset features characterizing content of the asset component; selecting, from the database of asset components, a plurality of asset components based on the plurality of asset features, wherein each asset component of the plurality of asset components is tagged in the database with at least one asset feature from the plurality of asset features; generating the marketing asset by combining the plurality of asset components; and providing the marketing asset for presentation on a graphical user interface of the user device. 2 We refer to the Specification filed Sept. 1, 2015 (“Spec.”); Non-Final Office Action mailed June 21, 2019 (“Non-Final Act.”); Appeal Brief filed Dec. 3, 2019 (“Appeal Br.”); and Examiner’s Answer mailed Apr. 6, 2020 (“Ans.”). Appeal 2020-005530 Application 14/842,333 3 REFERENCE The prior art relied upon by the Examiner as evidence in rejecting the claims on appeal is: Name Reference Date Javangula et al. (“Javangula”) US 2011/0119125 A1 May 19, 2011 REJECTIONS Claims 1–3, 5–15, and 17–20 stand rejected under 35 U.S.C. § 102 as anticipated by Javangula. Non-Final Act. 3. Claims 1–3, 5–15, and 17–20 stand rejected under 35 U.S.C. § 103 as unpatentable over Javangula. Non-Final Act. 3. ANALYSIS Section 102 Rejection Claims 1–3, 5–11, 19, and 20 Claim 1 recites “selecting a plurality of asset features based on the one or more user attributes.” Claim 19 recites a commensurate limitation. Appeal Br. 26 (Claims App.). The Examiner finds that Javangula’s ad serving decision that leverages the optimization module informed by the analytic module, describes selecting a plurality of assets. Non-Final Act. 4–5 (citing Javangula ¶¶ 81–82, 116, Fig. 3). Specifically, the Examiner finds that Javangula describes assembling different subcomponents of an ad on the fly, selecting a theme for a campaign, and storing asset components (headline, Appeal 2020-005530 Application 14/842,333 4 offer content, colors, images, animation). Non-Final Act. 5 (citing Javangula ¶¶ 50–51, 53, 74–75); see also Ans. 6–7. Appellant argues that Javangula describes that “given particular user parameters, particular subcomponents are used,” as opposed to the claimed “user attributes are used to select asset features.” Appeal Br. 7. Specifically, Appellant argues that Javangula describes “some variable used for targeting advertisements,” but does not describe “selecting asset features based on user attributes.” Id. at 8. Appellant argues that “claim 1 is directed to selecting asset features based on user attributes, not selecting subcomponents in an optimized manner as in the cited portions of Javangula.” Id. (citing Javangula ¶¶ 81–82, 116). We are not persuaded by Appellant’s argument that the Examiner erred. As cited by the Examiner, Appellant’s Specification describes “asset components” as “portions of marketing content that are configured to be combined together to form a marketing asset,” including “an ‘image component’ [that] includes a still image, a ‘text component’ [that] includes a textual message,” and “a ‘video component’ [that] includes a video.” Spec. ¶ 18; see also Ans. 5–6 (citing Spec. ¶¶ 5, 18). The Examiner also cites to Appellant’s Specification to describe an “asset feature” as “any aspect used to characterize a marketing asset or asset component,” such as to “identify and characterize objects within an image, a particular textual message,” or “objects/actions/themes of a video.” Spec. ¶ 19; see also Ans. 4–5 (citing Spec. ¶ 19). In other words, the Specification broadly defines “asset components” as parts of an advertisement, including image, text, and video, and “asset features” as an aspect identifying or characterizing the images, Appeal 2020-005530 Application 14/842,333 5 text, and videos that are parts of an advertisement. The Specification does not further limit the “asset features” to any specific type of information. Javangula discloses that “assets” that are used to “construct a display advertisement” include “[b]ackground images, brand logos, messaging snippets, videos, font files, Flash creative concepts, video creative snippets, assets that make up ad experiences, etc.” Javangula ¶ 75. Javangula discloses “Real-time ad construction” including an “Optimization module” and an “Analytics module.” Id. ¶¶ 76, 81, 83. The Optimization module “selects [a] set of components that are likely to produce the greatest performance for [a] given ad campaign,” and it “works in concert with the Analytics module” that “continuously computes the relative performance [of] each subcomponent” for the “campaign” and to “serve[] ad impressions.” Id. ¶¶ 82, 84. In other words, Javangula describes constructing advertisements using asset components, including images, text, and videos, based on information pertaining to which components would produce the greatest results. Appellant does not address the Examiner’s findings that the claimed “asset components” and “asset features” are defined broadly enough to encompass Javangula’s selection of components for an ad campaign based on computed performance analytics for the components, respectively. Here, Appellant does not persuasively explain why Javangula’s performance analytics informing which components to select for an advertisement campaign does not describe the claimed “selecting a plurality of asset features.” Claim 1 further recites “accessing a database of asset components in which each asset component in the database is tagged with one or more asset Appeal 2020-005530 Application 14/842,333 6 features characterizing content of the asset component.” Claim 19 recites a commensurate limitation. Appeal Br. 26 (Claims App.). The Examiner finds that Javangula describes components associated with data that considers parameters for the audience, media, and campaign, making up the ad tag structure. Ans. 10 (citing Javangula ¶¶ 45, 49, 78, 163, 183–184); see also Non-Final Act. 5 (citing Javangula ¶¶ 74–78, 161–163, 184–186, Fig. 6). Appellant argues that although Javangula’s “creative assets may include subcomponents used in generating an advertisement, there is nothing . . . in Javangula indicating that the subcomponents are tagged with asset features characterizing content of the subcomponents.” Appeal Br. 9; see also Appeal Br. 10 (citing Javangula ¶¶ 74–78, 161–163, 184–186). We are not persuaded by Appellant’s argument that the Examiner erred. As cited by the Examiner, Javangula discloses identifying “elements of the ad experience,” filling out a “spreadsheet for all different variants associated with each component of the ad,” and assembling the “hard assets like images and Flash movies required to populate the experience.” Javangula ¶¶ 160–162. In other words, Javangula describes advertisement components are associated with information about the components. As discussed above, Javangula also describes constructing advertisements using asset components, including images, text, and videos, based on information pertaining to which components would produce the greatest results. See Javangula ¶¶ 75–76, 81–84. Appellant does not persuasively explain why Javangula’s advertisement components being associated with descriptions and Appeal 2020-005530 Application 14/842,333 7 information does not describe the claimed asset components being tagged with “asset features character content of the asset component.” Claim 1 further recites “selecting, from the database of asset components, a plurality of asset components based on the plurality of asset features, wherein each asset component of the plurality of asset components is tagged in the database with at least one asset feature from the plurality of asset features.” Claim 19 recites a commensurate limitation. Appeal Br. 26 (Claims App.). The Examiner finds that Javangula’s ad serving decision that leverages the optimization module informed by the analytic module, teaches selecting asset components based on asset features from the database. Non- Final Act. 5 (citing Javangula ¶¶ 74–78, 81–82, 116, Fig. 3); see Ans. 10–11. Appellant argues that nothing in Javangula describes “selecting subcomponents based on asset features selected from user attributes.” Appeal Br. 12 (citing Javangula ¶¶ 74–78, 81–82, 116). Specifically, Appellant argues that Javangula “merely reflects some user attributes that can be used to select components,” but that the “variables describe the user and are not asset features that characterize content of subcomponents.” Appeal Br. 12. We are not persuaded by Appellant’s argument that the Examiner erred. As discussed above, Javangula describes constructing advertisements using asset components, including images, text, and videos, based on information pertaining to which components would produce the greatest results. See Javangula ¶¶ 75, 76, 81–84. Appellant does not persuasively explain why Javangula’s information pertaining to which components would produce the greatest results, used to Appeal 2020-005530 Application 14/842,333 8 construct advertisements, does not describe the claimed selecting asset components based on the tagged and corresponding asset features. Claim 19 further recites “an asset delivery tracking module to track and store asset delivery event data for a plurality of asset delivery events, the asset delivery event data including, for each asset delivery event, asset features of a respective delivered marketing asset and user attributes of a respective user receiving the respective delivered marketing asset.” The Examiner finds that Javangula’s creating data and asset feeds and submitting them to the ad delivery platform teaches the claimed collecting asset delivery event data and identifying asset features for a delivered marketing asset. Non-Final Act. 4 (citing Javangula ¶ 58). Specifically, the Examiner finds that the data from the Javangula’s analytics module pertains to the ad campaign, and that Javangula’s Customer Case Study enabling the leveraging of the ad serving platform for dynamic ad executions, contributes to the advertiser establishing relevant, dynamic, real time ad experiences. Ans. 13–14 (citing Javangula ¶¶ 58, 153–155, Figs. 4, 9–11). Appellant argues that Javangula teaches “data that is submitted to an ad delivery platform for serving ads,” but not “collecting information regarding the delivery of assets to users.” Appeal Br. 14; see Appeal Br. 18– 19. Appellant also argues that Javangula teaches “selecting subcomponents that will produce the greatest performance when multiple subcomponents are available,” which “merely reflects optimization in the selection of subcomponents to provide the best performance for an ad campaign,” but does not teach “generating a model using asset delivery event data.” Id. at 15 (citing Javangula ¶¶ 81, 82, 116). Appeal 2020-005530 Application 14/842,333 9 We are not persuaded by Appellant’s argument that the Examiner erred. As cited by the Examiner, Javangula discloses that the “actual campaign execution” for which the advertisements are constructed involves “creat[ing] data and asset feeds and submit[ting] to the an ad delivery platform.” Javangula ¶ 58. In other words, Javangula describes tracking and storing information pertaining to delivered advertisements as part of the campaign for which advertisements are constructed. As discussed above, Javangula also describes constructing advertisements based on information pertaining to which components would produce the greatest results. See Javangula ¶¶ 75, 76, 81–84. Appellant does not persuasively explain why Javangula’s constructing advertisements based on which components would produce the greatest results, for advertisement campaigns that consider advertisement feeds, does not describe the claimed tracking and storing advertisement information. Accordingly, we sustain the Examiner’s rejection of independent claim 1, along with the rejection of independent claim 19, along with dependent claims 2, 3, 5–11, and 20, which are not argued separately. See Appeal Br. 13, 20. Claims 12–15, 17, and 18 Claim 12 further recites “generating the new marketing asset using the plurality of asset components without use of a template by using asset component relational information to locate the plurality of asset components relative to one another within the new marketing asset.” The Examiner finds that Javangula’s ad constructions module assembling the ad experience describes generating the new marketing asset as claimed. Non-Final Act. 5 (citing Javangula ¶¶ 12, 22, 66, 80, 95, 98, Appeal 2020-005530 Application 14/842,333 10 127, 132–139, 160–165, Figs. 6–9, 12). Specifically, the Examiner finds that Javangula’s template “is a dynamic template, allowing for infinite configurations.” Id. at 6 (citing Javangula ¶¶ 84–90, 131, 195). According to the Examiner, “the ad construction of Javangula is flexible” and “the arrangement of subcomponents and components within the ad are in a state of continuous updating and not limited to a fixed template.” Ans. 17–18 (citing Javangula ¶¶ 90, 131). Appellant argues that Javangula is “silent about using asset component relational information to locate asset components relative to one another without the use of any template.” Appeal Br. 18; see Appeal Br. 17. We are persuaded by Appellant’s argument as the Examiner has not identified sufficient evidence or provided sufficient explanation as to how Javangula’s use of a template, whether it is a dynamic template or a fixed template, describes “generating the new marketing asset using the plurality of asset components without use of a template” as claimed. The cited sections of Javangula disclose “dynamic design” by “build[ing] dynamic advertising templates for ad construction.” Javangula ¶ 90. Javangula includes “advertising templates” as an asset that “formulate[s] the ad experiences.” Id. ¶ 131. In other words, the sections of Javangula cited by the Examiner and on the record before us do not describe generating an advertisement (marketing asset) “without use of a template.” Instead, the cited sections of Javangula explicitly describe using an advertisement template, albeit a dynamic one, to generate advertisements. Therefore, we agree with Appellant that the Examiner’s finding that Javangula describes discloses the disputed limitation is in error because it is Appeal 2020-005530 Application 14/842,333 11 not supported by a preponderance of the evidence. See In re Caveney, 761 F.2d 671, 674 (Fed. Cir. 1985) (The Examiner’s burden of proving non- patentability is by a preponderance of the evidence.); see also In re Warner, 379 F.2d 1011, 1017 (CCPA 1967) (“The Patent Office has the initial duty of supplying the factual basis for its rejection. It may not, because it may doubt that the invention is patentable, resort to speculation, unfounded assumptions or hindsight reconstruction to supply deficiencies in its factual basis.”). Accordingly, we are constrained on the record before us to reverse the Examiner’s § 102 rejection of independent claim 12, along with dependent claims 13–15, 17, and 18, not separately argued. See Appeal Br. 18. Section 103 Rejection3 Claims 12–15, 17, and 18 As discussed above, claim 12 recites “generating the new marketing asset using the plurality of asset components without use of a template by using asset component relational information to locate the plurality of asset components relative to one another within the new marketing asset.” “In rejecting claims under 35 U.S.C. § 103, the examiner bears the initial burden of presenting a prima facie case of obviousness.” In re Rijckaert, 9 F.3d 1531, 1532 (Fed. Cir. 1993) (citing In re Oetiker, 977 F.2d 1443, 1445 (Fed. Cir. 1992)). Rejections based on obviousness must be supported by “some articulated reasoning with some rational underpinning to support the legal conclusion of obviousness.” In re Kahn, 441 F.3d 977, 3 Because we sustain the rejection of claims 1–3, 5–11, 19, and 20 under 35 U.S.C. § 102, we do not address the Examiner’s alternative grounds of rejection of claims 1–3, 5–11, 19, and 20 under 35 U.S.C. § 103. See 37 C.F.R. § 41.50(a)(1). Appeal 2020-005530 Application 14/842,333 12 988 (Fed. Cir. 2006), cited with approval in KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 418 (2007). Based on the current record and the Examiner’s findings, we agree with Appellant that the Examiner did not provide sufficient reasoning as to why the person of ordinary skill in the art would generate advertisements, as taught in Javangula, but without the use of Javangula’s advertisement templates to do so. Instead, as discussed above, the cited sections of Javangula explicitly teach using an advertisement template, albeit a dynamic one, to generate advertisements. See Javangula ¶¶ 90, 131. Therefore, we agree with Appellant that the Examiner’s finding that Javangula describes the disputed limitation is in error because it is not supported by a preponderance of the evidence. See Caveney, 761 F.2d at 674. Accordingly, we are constrained on the record before us to reverse the Examiner’s § 103 rejection of independent claim 12, along with dependent claims 13–15, 17, and 18, not separately argued. See Appeal Br. 18. CONCLUSION We affirm the Examiner’s § 102 rejection of claims 1–3, 5–11, 19, and 20. We reverse the Examiner’s § 102 rejection of claims 12–15, 17, and 18. We reverse the Examiner’s § 103 rejection of claims 12–15, 17, and 18. Appeal 2020-005530 Application 14/842,333 13 DECISION SUMMARY In summary: Claims Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 1–3, 5–15, 17–20 102 Javangula 1–3, 5–11, 19, 20 12–15, 17, 18 1–3, 5–15, 17–20 103 Javangula4 12–15, 17, 18 Overall Outcome 1–3, 5–11, 19, 20 12–15, 17, 18 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). AFFIRMED IN PART 4 As explained above, because we sustain the rejection of claims 1–3, 5–11, 19, and 20 under 35 U.S.C. § 102, we do not address the Examiner’s alternative grounds of rejection of claims 1–3, 5–11, 19, and 20 under 35 U.S.C. § 103.