Brian F. Roberts et al.Download PDFPatent Trials and Appeals BoardMar 27, 202013195820 - (D) (P.T.A.B. Mar. 27, 2020) Copy Citation 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. 13/195,820 08/01/2011 Brian F. Roberts 20110296 2631 25537 7590 03/27/2020 VERIZON PATENT MANAGEMENT GROUP 1300 I STREET NW SUITE 500 EAST WASHINGTON, DC 20005 EXAMINER SNIDER, SCOTT ART UNIT PAPER NUMBER 3621 NOTIFICATION DATE DELIVERY MODE 03/27/2020 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): VZPatent25537@verizon.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte BRIAN F. ROBERTS, ANTHONY M. LEMUS, JAPAN A. MEHTA, KISHORE TALLAPANENI, DONALD H. RELYEA, and MICHAEL R. OLIVER Appeal 2018-005818 Application 13/195,820 Technology Center 3600 Before ALLEN R. MacDONALD, MICHAEL J. ENGLE, and IFTIKHAR AHMED, Administrative Patent Judges. ENGLE, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Appellant1 appeals under 35 U.S.C. § 134(a) from the Examiner’s decision rejecting claims 1–3, 6–10, 12, 14–17, 19, 21, and 25, which are all of the claims pending in the application. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM-IN-PART. 1 We use the word “Appellant” to refer to “applicants” as defined in 37 C.F.R. § 1.42(a). Appellant identifies Verizon Communications Inc. as the real party in interest. Appeal Br. 3. Appeal 2018-005818 Application 13/195,820 2 TECHNOLOGY The claims relate to targeted advertising when a group of users watch media content together in the same room. Spec. ¶¶ 1–2. ILLUSTRATIVE CLAIMS Independent claims 1 and 19 are illustrative and reproduced below with certain limitations at issue emphasized: 1. A method comprising: receiving, by a primary media content access device from a media content provider subsystem by way of a subscriber television network, a media content stream comprising data representative of a media content instance, the primary media content access device comprising a set top box; presenting, by the primary media content access device by way of a display screen communicatively connected with the primary media content access device by way of a local area network, the media content instance; detecting, by the primary media content access device during the presentation of the media content instance, a presentation of a media content instance; determining, by the primary media content access device in response to the detecting of the presentation of the media content instance, that a secondary media content access device and a user of the secondary media content access device are located within a detection zone associated with the primary media content access device during a time period associated with the presentation of the media content instance, the determining that the secondary media content access device and the user are located within the detection zone comprising: detecting, by way of a detection device included in the primary media content access device, physical surroundings of the detection zone detected by the detection device during the time period associated with the presentation of the media content instance to obtain data Appeal 2018-005818 Application 13/195,820 3 representative of the physical surroundings of the detection zone, the detection device included in the primary media content access device comprising at least one of an image sensor device, a depth sensor device, an audio sensor device, and a thermal sensor device; identifying, based on the data representative of the physical surroundings of the detection zone, a location of the secondary media content access device; determining, based on the data representative of the physical surroundings of the detection zone, that the secondary media content access device is located within a first predetermined distance of the primary media content access device or the display screen; and determining, based on the data representative of the physical surroundings of the detection zone, that the user is located within a second predetermined distance of the secondary media content access device; and in response to the determining that the secondary media content access device and the user of the secondary media content access device are located within the detection zone during the time period associated with the presentation of the media content instance, performing: selecting, by the primary media content access device in accordance with a course correction heuristic, advertisement content related to the media content instance and configured to target the user of the secondary media content access device, the selecting of the advertisement content in accordance with the course correction heuristic comprising detecting a sharing of a particular advertisement content instance with the user by another user prior to the presentation of the media content instance and selecting the advertisement content based on the shared advertisement content instance; and Appeal 2018-005818 Application 13/195,820 4 directing, by the primary media content access device, the secondary media content access device to present the selected advertisement content during the presentation of the media content instance by the primary media content access device, wherein the media content instance presented by way of the primary media content access device comprises a first version of an advertisement, the advertisement content presented by way of the secondary media content access device comprises a second version of the advertisement, and the first version of the advertisement presented by way of the primary media content access device is different than the second version of the advertisement presented by way of the secondary media content access device. 19. A method comprising: receiving, by a primary media content access device from a media content provider subsystem by way of a network, a media content stream comprising data representative of an advertisement content instance; presenting, by the primary media content access device by way of a display screen communicatively connected with the primary media content access device by way of a local area network, the advertisement content instance; detecting, by the primary media content access device, a presentation of the advertisement content instance; determining, by the primary media content access device, that a first mobile device associated with a first user, the first user, a second mobile device associated with a second user, and the second user are located within a detection zone associated with the primary media content access device during a time Appeal 2018-005818 Application 13/195,820 5 period associated with the presentation of the advertisement content instance, the determining that the first mobile device, the first user, the second mobile device, and the second user are located within the detection zone comprising: detecting, by way of a detection device included in the primary media content access device, physical surroundings of the detection zone detected by the detection device during the presentation of the advertisement content instance to obtain data representative of the physical surroundings of the detection zone, the detection device included in the primary media content access device comprising at least one of an image sensor device, a depth sensor device, an audio sensor device, and a thermal sensor device; identifying, based on the data representative of the physical surroundings of the detection zone, a location of the first mobile device and a location of the second mobile device during the presentation of the advertisement content instance; determining, based on the data representative of the physical surroundings of the detection zone, that the first mobile device and the second mobile device are located within a first predetermined distance of the primary media content access device or the display screen, determining, based on the data representative of the physical surroundings of the detection zone, that the first user is located within a second predetermined distance of the first mobile device during the time period associated with the presentation of the advertisement content instance, and determining, based on the data representative of the physical surroundings of the detection zone, that the second user is located within a second predetermined distance of the second mobile device during the time period associated with the presentation of the advertisement content instance, and Appeal 2018-005818 Application 13/195,820 6 in response to the determining that the first mobile device, the second mobile device, the first user, and the second user are located within the detection zone during the time period associated with the presentation of the advertisement content instance, performing: selecting, by the primary media content access device in accordance with a first user profile associated with the first user, a first additional advertisement content instance related to the advertisement content instance and configured to target the first user; selecting, by the primary media content access device in accordance with a second user profile associated with the second user, a second additional advertisement content instance related to the advertisement content instance and configured to target the second user, the second additional advertisement content instance being different than the first additional advertisement content instance; directing, by the primary media content access device, the first mobile device to present the selected first additional advertisement content instance during the presentation of the advertisement content instance by the primary media content access device; and directing, by the primary media content access device, the second mobile device to present the selected second additional advertisement content instance during the presentation of the advertisement content instance by the primary media content access device, wherein the first additional advertisement content instance and the second additional advertisement content instance are different than the advertisement content instance presented by way of the primary media content access device. Appeal 2018-005818 Application 13/195,820 7 REFERENCES The Examiner relies upon the following prior art references: Name Number Date of Issue/Pub. Chang US 2010/0042471 A1 Feb. 18, 2010 Kanevsky US 7,515,136 B1 Apr. 7, 2009 Kleinmann US 8,316,020 B1 Nov. 20, 2012 Neven US 7,751,805 B2 July 6, 2010 Reisman US 2004/0031058 A1 Feb. 12, 2004 Sharma US 8,665,333 B1 Mar. 4, 2014 REJECTIONS Claims 1–3, 6–10, 12, 14–17, 19, 21, and 25 stand rejected under 35 U.S.C. § 101 as being directed to patent-ineligible subject matter without significantly more. Final Act. 3. Claims 1–3, 6–8, 12, 14, 16, 17, 19, 21, and 25 stand rejected under 35 U.S.C. § 103 as being obvious over Reisman, Kanevsky, and Chang. Final Act. 5. Claim 9 stands rejected under 35 U.S.C. § 103 as being obvious over Reisman, Kanevsky, Chang, and Sharma. Final Act. 21. Claim 10 stands rejected under 35 U.S.C. § 103 as being obvious over Reisman, Kanevsky, Chang, and Neven. Final Act. 22. Claim 15 stands rejected under 35 U.S.C. § 103 as being obvious over Reisman, Kanevsky, Chang, Sharma, and Kleinmann. Final Act. 23. ISSUES 1. Did the Examiner err in concluding that claim 1 is directed to patent-ineligible subject matter without significantly more? 2. Did the Examiner err in finding Chang teaches or suggests “selecting, by the primary media content access device . . . , advertisement content . . . , the selecting of the advertisement content . . . comprising” Appeal 2018-005818 Application 13/195,820 8 (1) “detecting a sharing of a particular advertisement content instance with the user by another user prior to the presentation of the media content instance” and (2) “selecting the advertisement content based on the shared advertisement content instance,” as recited in claim 1? 3. Did the Examiner err in finding Reisman teaches or suggests “determining, based on the data representative of the physical surroundings of the detection zone, that the first user is located within a second predetermined distance of the first mobile device during the time period associated with the presentation of the advertisement content instance” and “determining, based on the data representative of the physical surroundings of the detection zone, that the second user is located within a second predetermined distance of the second mobile device during the time period associated with the presentation of the advertisement content instance,” as recited in claim 19? ANALYSIS § 101 In 2019, the U.S. Patent & Trademark Office published revised guidance on the application of § 101. USPTO, 2019 Revised Patent Subject Matter Eligibility Guidance, 84 Fed. Reg. 50 (Jan. 7, 2019) (“Guidance”); USPTO, October 2019 Update: Subject Matter Eligibility, available at https://www.uspto.gov/sites/default/files/documents/ peg_oct_2019_update.pdf (“Oct. Update”). Under that guidance, we look to the following steps to determine whether the claim recites the following items: Appeal 2018-005818 Application 13/195,820 9 USPTO Step Does the claim recite ___? MPEP § 1 A process, machine, manufacture, or composition of matter 2106.03 2A, Prong 1 A judicial exception, such as a law of nature or any of the following groupings of abstract ideas: 1) Mathematical concepts, such as mathematical formulas; 2) Certain methods of organizing human activity, such as a fundamental economic practice; or 3) Mental processes, such as an observation or evaluation performed in the human mind. 2106.04 2A, Prong 2 Any additional limitations that integrate the judicial exception into a practical application 2106.05(a)– (c), (e)–(h) 2B Any additional limitations beyond the judicial exception that, alone or in combination, were not “well-understood, routine, conventional” 2106.05(d) See Guidance 52, 55, 56. Under the Guidance, if the claim does not recite a judicial exception, then it is eligible under § 101 and no further analysis is necessary. Id. at 54. Similarly, under the Guidance, “if the claim as a whole integrates the recited judicial exception into a practical application of that exception,” then no further analysis is necessary. Id. at 53, 54. Here, Appellant argues that claim 1 “is ‘directed to’ the concept of targeted advertising” and recites multiple “additional elements” that “amount to significantly more than merely targeted advertising.” Appeal Br. 16, 22–23. The Examiner, on the other hand, determines that claim 1 is directed to “synchronizing advertisement content to a user device detected to be near Appeal 2018-005818 Application 13/195,820 10 another media presentation device providing advertisement content.” Ans. 3 (emphasis omitted). Even if we agreed with the Examiner’s formulation of the abstract idea for purposes of USPTO Step 2A, Prong 1, we agree with Appellant that the claims recite additional limitations that integrate that abstract idea into a practical application. For example, claim 1 recites how the advertisement content is selected (e.g., “selecting the advertisement content based on” a “particular advertisement content instance” that was “shared” “with the user by another user” in the past). Claim 1 and independent claim 19 also recite how proximity is detected (e.g., “detecting . . . physical surroundings” by “at least one of an image sensor device, a depth sensor device, an audio sensor device, and a thermal sensor device” and using that data to determine various specific objects or people are “within a . . . predetermined distance of” another specific object or person). Moreover, the advertising content is not merely “synchronized” but rather the claims require directing “different” related advertisements to each device. Thus, the claims impose meaningful limits on the judicial exception, such that the claims are more than a drafting effort designed to monopolize the judicial exception. The claims therefore integrate the Examiner’s abstract idea into a practical application. Accordingly, we do not sustain the Examiner’s rejection under § 101 of claims 1–3, 6–10, 12, 14–17, 19, 21, and 25. § 103 Claims 1–3, 6–8, 12, 14, 16, 17, and 25 Claim 1 recites “selecting, by the primary media content access device . . . , advertisement content . . . , the selecting of the advertisement content . . . comprising” (1) “detecting a sharing of a particular advertisement Appeal 2018-005818 Application 13/195,820 11 content instance with the user by another user prior to the presentation of the media content instance” and (2) “selecting the advertisement content based on the shared advertisement content instance.” Independent claim 21 recites commensurate limitations. The Examiner relies upon Chang for teaching these limitations. Ans. 7. The Examiner finds that although “the motivation of Chang is primarily directed towards rewarding a referrer [i.e., a person] for providing an advertisement referral, . . . Chang also teaches selecting advertisements . . . based on a referrer’s recommendations in at least [0034]. In addition, Chang teaches selecting advertisement recipients based on past interactions with forwarded advertisements in at least [0035] . . . .”2 Ans. 7. However, we agree with Appellant that even if Chang teaches a device suggesting recipients for a particular ad based upon prior interactions, it is still a person (the referrer) that selects the ad. Reply Br. 16; Chang ¶¶ 34–36. Claim 1, however, requires the primary media content access device (e.g., a set top box, not a person) selecting the ad (not a recipient) based upon a prior “sharing” of an ad, and the Examiner has not sufficiently explained how Chang teaches that. Accordingly, we do not sustain the Examiner’s rejection under § 103 of independent claims 1 and 21 and their dependent claims 2, 3, 6–8, 12, 14, 16, 17, and 25. Claims 9, 10, and 15 The Examiner does not rely on Sharma, Neven, or Kleinmann to cure the deficiencies above. Accordingly, we do not sustain the Examiner’s rejections under § 103 of claims 9, 10, and 15 for the same reasons. 2 The Examiner may have meant paragraph 36 of Chang rather than 35. Appeal 2018-005818 Application 13/195,820 12 Claim 19 For independent claim 19, Appellant argues the prior art fails to teach “determining, based on the data representative of the physical surroundings of the detection zone, that the first user is located within a second predetermined distance of the first mobile device during the time period associated with the presentation of the advertisement content instance” and “determining, based on the data representative of the physical surroundings of the detection zone, that the second user is located within a second predetermined distance of the second mobile device during the time period associated with the presentation of the advertisement content instance.” The Examiner relies on Reisman for these limitations, finding that Reisman “clearly teaches utilizing a context that includes a user’s proximity . . . in the determination of what content, i[f] any, should be presented to a user.” Ans. 7 (citing Reisman ¶¶ 57, 705). For claim 19, Appellant refers to its argument for a similar limitation in claim 1 that Reisman “teaches detecting whether the secondary device set is in an active state or an inactive state by detecting a motion of the secondary device set or user interactions with the secondary device set,” but that “nothing in Reisman teaches detecting a distance between a user and the secondary device set.” Appeal Br. 36–37 (claim 19), 35 (claim 1). Reisman relates to an “interactive television” and “use of user interfaces that permit interaction using multiple coordinated device sets.” Reisman ¶ 2. Reisman discloses that “context-awareness” can be employed “to determine that a secondary device set was being activated or deactivated . . . or to provide a more subtle level of transition of focus such as when a handheld device was put aside but intended to remain in a ready, active Appeal 2018-005818 Application 13/195,820 13 state.” Id. ¶ 705. Elsewhere, Reisman further discloses that a “broader use of context and context-awareness is meant to include all aspects of the user’s state, including . . . such factors as . . . proximity.” Id. ¶ 57. “Proximity” between a user and a device teaches or suggests distance between a user and a device. Therefore, we are not persuaded by Appellant’s argument that Reisman fails to teach or suggest detecting a distance between a user and the device. Accordingly, we sustain the Examiner’s rejection under § 103 of claim 19. DECISION The following table summarizes the outcome of each rejection: Claims Rejected 35 U.S.C. Basis Affirmed Reversed 1–3, 6–10, 12, 14–17, 19, 21, 25 § 101 Eligibility 1–3, 6–10, 12, 14–17, 19, 21, 25 1–3, 6–8, 12, 14, 16, 17, 19, 21, 25 § 103 Reisman, Kanevsky, Chang 19 1–3, 6–8, 12, 14, 16, 17, 21, 25 9 § 103 Reisman, Kanevsky, Chang, Sharma 9 10 § 103 Reisman, Kanevsky, Chang, Neven 10 15 § 103 Reisman, Kanevsky, Chang, Sharma, Kleinmann 15 OVERALL 19 1–3, 6–10, 12, 14–17, 21, 25 Appeal 2018-005818 Application 13/195,820 14 TIME TO RESPOND 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. § 1.36(a)(1)(iv). AFFIRMED-IN-PART Copy with citationCopy as parenthetical citation