Comcast Cable Communications, LLC

Patent Trials and Appeals Board

Feb 18, 2022

2021001044 (P.T.A.B. Feb. 18, 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. 15/170,437 06/01/2016 Steve Ariantaj 007412.03277\US 4869 71867 7590 02/18/2022 BANNER & WITCOFF , LTD ATTORNEYS FOR CLIENT NUMBER 007412 1100 13th STREET, N.W. SUITE 1200 WASHINGTON, DC 20005-4051 EXAMINER EKPO, NNENNA NGOZI ART UNIT PAPER NUMBER 2425 NOTIFICATION DATE DELIVERY MODE 02/18/2022 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): PTO-71867@bannerwitcoff.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte STEVE ARIANTAJ, IGOR SHAPIRO, VILAS VEERARAGHAVAN, STEPHEN WIEBE, and MARK THOMAS _____________ Appeal 2021-001044 Application 15/170,437 Technology Center 2400 ____________ Before, JOHNNY A. KUMAR, NORMAN H. BEAMER, and MICHAEL T. CYGAN, Administrative Patent Judges. KUMAR, Administrative Patent Judge. DECISION ON APPEAL Appellant1 appeals under 35 U.S.C. § 134(a) from a final rejection of claims 2, 3, 7-24, and 26-30. The Examiner has indicated claims 5, 6, and 25 contain allowable subject matter. Final Act. 19. We have jurisdiction over the pending claims under 35 U.S.C. § 6(b). We affirm. 1 We use the word “Appellant” to refer to “applicant” as defined in 37 C.F.R. § 1.42(a) (2018). According to Appellant, the real party in interest is Comcast Cable Communications, LLC. See Appeal Br. 2. Appeal 2021-001044 Application 15/170,437 2 STATEMENT OF THE CASE 2 Introduction Appellant’s claimed invention relates generally to: [A] system may selectively deliver interactive portions of a piece of content, based for example on a recipient user's historical tendency to use interactive portions of prior content. Multiple levels of interactivity may be defined for a given piece of content, such as an advertisement, and different users may receive different levels of interactivity based on how much they use interactive features. Some users may receive no interactive features at all, while others may receive the interactive features, and despite the fact that all of the users' devices may be perfectly capable of processing the interactive features for the user. The omission from transmission may conserve bandwidth and transmission resources. (See Abstract). Representative Independent Claim 2 2. A method comprising: determining, by a computing device, a level of user interaction with an interactive version of a first media asset outputted via a user device; determining, based on the level of user interaction with the interactive version of the first media asset, a predicted level of user interaction with a second media asset; determining, from a non-interactive version of the second media asset and an interactive version of the second media asset and based on the predicted level of user interaction, a determined version of the second media asset to send to the user device; and 2 We herein refer to the Final Office Action, mailed (Jan. 29, 2020) (“Final Act.”); Appeal Brief, filed (July 21, 2020) (“Appeal Br.”); the Examiner’s Answer, mailed (Oct. 2, 2020) (“Ans.”); and the Reply Brief, filed (Nov. 30, 2020) (“Reply Br.”). Appeal 2021-001044 Application 15/170,437 3 sending, to the user device, the determined version of the second media asset. Appeal Br. 14, Claims App., disputed limitations emphasized. Rejections3 Claims 2, 3, 7-12, 14-24, and 29 are rejected under 35 U.S.C. § 103 as being unpatentable over Shamir et al. (US 2013/0325603 A1, published December 5, 2013) in view of Kamar et al. (US 2010/0332315 A1, published December 30, 2010). Claim 13 is rejected under 35 U.S.C. § 103 as being unpatentable over Shamir et al. and Kamar et al. and further in view of Allen (US 2009/0276323 A1, published November 5, 2009). Claim 30 is rejected under 35 U.S.C. § 103 as being unpatentable over Shamir et al. and Kamar et al. and further in view of Luna (US 2014/0018033 A1, published January 16, 2014). Issue on Appeal Did the Examiner err in rejecting claims 2, 3, 7-24, 29, and 30 as being obvious? ANALYSIS Based on Appellant’s arguments in the Briefs, the principal and dispositive issue of whether the Examiner erred in rejecting exemplary claim 2 turns on whether the combination of Shamir and Kamar teaches the claim limitations 3 The Examiner has withdrawn the § 103 rejections of claims 26-28. Ans. 4. Appeal 2021-001044 Application 15/170,437 4 determining, from a non-interactive version of the second media asset and an interactive version of the second media asset and based on the predicted level of user interaction, a determined version of the second media asset to send to the user device (hereinafter “the disputed interactive/non-interactive versions limitations”). Appeal Br. 5-7; Reply Br. 2, 3. Independent claims 8, 14 and 20 recite similar subject matter. Appeal Br. 7, 8. We adopt the findings of facts made by the Examiner in the Final Office Action and Examiner’s Answer as our own. We concur with the decision reached by the Examiner in the Examiner’s Answer for the specific reasons discussed below. We have considered Appellant’s Reply Brief, but find it unpersuasive to rebut the Examiner’s responses. We highlight the following for emphasis. Appellant contends Kamar does not disclose the disputed interactive/non-interactive versions limitations. Appeal Br. 5-7. In particular, Appellant contends: Kamar fails to disclose interactive and non-interactive versions of the same advertisement…and there is nothing in Kamar to suggest that these two advertisements are two versions of the recited second media asset. At the time an advertisement is selected, and at all other times, the existence of a non-interactive version and an interactive version of the same advertisement is not described in Kamar. Appeal Br. 22 (emphases added). The Examiner has identified the relevant portions of Kamar and has provided sufficient explanation with corresponding citations to various parts of the reference for disclosing the disputed interactive/non-interactive versions limitations (Final Act. 3; Ans. 4-6). In particular, the Examiner determines that Kamar’s static advertisements meets the claimed non- Appeal 2021-001044 Application 15/170,437 5 interactive versions, whereas Kamar’s advertisements with a user interface component meets the claimed interactive version (Final Act 3, citing Kamar, ¶ 48). Paragraph 48 of Kamar teaches, inter alia: As a fourth example, an advertisement opportunity factor may relate to an attention type may be identified for a particular advertisement opportunity 74 (e.g., partial or whole attention availability of the user 12, or an interactive or non-interactive attention availability of the user 12.) Advertisements 16 may therefore be selected that are compatible with the attention type that is likely to be exhibited by the user 12 during the advertisement opportunity 74 (e.g., a partial, non-interactive attention type may correspond to audio-only or static image advertisements 16, while a total, interactive attention type might correspond to video advertisements 16 or advertisements 16 with a user interface component.) (emphases added). Based on our review of Kamar and consistent with the Examiner’s stated position ((Final Act. 3; Ans. 4-6), we interpret the disputed interactive/non-interactive versions limitations using the broadest reasonable interpretation consistent with Appellant’s disclosure - to include the advertisements in Kamar. See In re Morris, 127 F.3d 1048, 1054 (Fed. Cir. 1997). Appellant also contends: Shamir discloses selecting categories of content that a user may interact with based on historical data (e.g., prior interactions with content indicating that the user likes golf, fishing, or philately). See Shamir at paras. 15, 17, 54-55, 57. However, Shamir modified by Kamar would simply mean that the selected advertisement (which may or may not have interactive features) would satisfy the Shamir interest category (e.g., golf) and the Appeal 2021-001044 Application 15/170,437 6 Kamar expected attention type. Id.; see also Kamar at paras. 26- 29. Appeal Br. 6, 7 (underlining omitted). The Examiner finds: it would have been obvious to a person of ordinary skill in the art at the time the invention was made to modify the systems and methods of Shamir et al. to include determining, from the non- interactive version of the second media asset and the interactive version of the second media asset and based on the predicted level of user interaction, a determined version of the second media asset as taught by Kamar et al. for the advantage of promoting the perceived utility of the advertising system to the user who may be more likely to devote attention to presented advertisements if selected to be of relevance to the user. Final Act. 6 (emphases added). We agree with the Examiner because Appellant’s arguments do not take into account what the collective teachings of the prior art would have suggested to one of ordinary skill in the art and are therefore ineffective to rebut the Examiner’s prima facie case of obviousness. See In re Keller, 642 F.2d 413, 425 (CCPA 1981) (“The test for obviousness is not whether the features of a secondary reference may be bodily incorporated into the structure of the primary reference; nor is it that the claimed invention must be expressly suggested in any one or all of the references. Rather, the test is what the combined teachings of the references would have suggested to those of ordinary skill in the art.” (citations omitted)). Accordingly, the Examiner appropriately combined the teachings of Shamir and Kamar. See Ans. 6-8. We further note that the Examiner has found actual teachings in the prior art and has provided a rationale for the combination (see Final Act. 4- 6). We find that the above-noted teachings suggest that the combination Appeal 2021-001044 Application 15/170,437 7 involves the predictable use of prior art elements according to their established functions, i.e., to quickly locate documents by clicking on a link to access other Weblog content. There is no requirement that the problem solved by the secondary reference be discussed by the primary reference to apply the teachings of the secondary reference in a rejection under 35 U.S.C. § 103. The Supreme Court has held that in analyzing the obviousness of combining elements, a court need not find specific teachings, but rather may consider “the background knowledge possessed by a person having ordinary skill in the art” and “the inferences and creative steps that a person of ordinary skill in the art would employ.” KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 418 (2007). To be nonobvious, an improvement must be “more than the predictable use of prior art elements according to their established functions,” id. at 417, and the basis for an obviousness rejection must include an “articulated reasoning with some rational underpinning to support the legal conclusion of obviousness.” Id. at 418 (citation omitted). Here, the Examiner has provided a rationale for the combination. Accordingly, we find that the Examiner has provided sufficient motivation for modifying Shamir with the teachings of Kamar. On this record, and based upon a preponderance of the evidence, we are not persuaded of error regarding the Examiner’s finding of obviousness regarding the rejection of independent representative claim 2. Regarding dependent claims 12, 24, and 30 while Appellant raises additional arguments for patentability of the cited claims (Appeal Br. 8-11), we find that the Examiner has responded in the Answer with sufficient evidence. Ans. 15, 16, and 18. Therefore, we adopt the Examiner’s findings and underlying reasoning, which are incorporated herein by reference. Appeal 2021-001044 Application 15/170,437 8 Therefore, we sustain the Examiner’s obviousness rejection of representative independent claim 2 and the rejection of grouped independent claims 8, 14 and 20, which recite similar limitations of commensurate scope. The remaining grouped dependent claims also rejected (and not argued separately) fall with their respective independent claims 2, 8, 14, and 20. See 37 C.F.R. § 41.37(c)(1)(iv). CONCLUSION Appellant has not shown the Examiner erred with respect to the obviousness rejections of claims 2, 3, 7-24, 29, and 30 over the cited prior art of record, and we sustain the rejections. DECISION SUMMARY In summary: Claims Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 2, 3, 7-12, 14-24, 29 103 Shamir, Kamar 2, 3, 7-12, 14-24, 29 13 103 Shamir, Kamar, Allen 13 30 103 Shamir, Kamar, Luna 30 Overall Outcome 2, 3, 7-24, 29, 30 Appeal 2021-001044 Application 15/170,437 9 FINALITY AND 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