Brian F. Roberts et al.

Patent Trials and Appeals Board

Mar 27, 2020

13195820 - (D) (P.T.A.B. Mar. 27, 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.
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.
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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
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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
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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
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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
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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.
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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”
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(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:
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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
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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
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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.
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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
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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
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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