DISH Technologies L.L.C.Download PDFPatent Trials and Appeals BoardOct 23, 202015166119 - (D) (P.T.A.B. Oct. 23, 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. 15/166,119 05/26/2016 Michael Alexander P2010-03-14.1 (1157227) 1492 100597 7590 10/23/2020 KILPATRICK TOWNSEND & STOCKTON LLP (DISH) DISH Network L.L.C. 1100 Peachtree Street Suite 2800 Atlanta, GA 30309 EXAMINER HUYNH, AN SON PHI ART UNIT PAPER NUMBER 2426 NOTIFICATION DATE DELIVERY MODE 10/23/2020 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): KTSDocketing2@kilpatrick.foundationip.com ipefiling@kilpatricktownsend.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte MICHAEL ALEXANDER ____________ Appeal 2019-003337 Application 15/166,119 Technology Center 2400 ____________ Before ELENI MANTIS MERCADER, ADAM J. PYONIN, and GARTH D. BAER, Administrative Patent Judges. BAER, Administrative Patent Judge. DECISION ON APPEAL Appeal 2019-003337 Application 15/166,119 2 STATEMENT OF THE CASE Appellant1 appeals under 35 U.S.C. § 134(a) from the Examiner’s final rejection of claims 21–40, which are all pending claims. Appeal Br. 29–37. We have jurisdiction under 35 U.S.C. § 6(b). We REVERSE. BACKGROUND A. The Invention Appellant’s invention is directed to a “history-based decision facilitator (‘HBDF’)” that “facilitates decision making in a television receiver based on device history data received from the television receiver.” The HDBF “receives an indication of an operation to be performed by the television receiver” and then “determines values” for one or more parameters “based on the device history data.” Abstract. Independent claims 21 and 23 are representative and reproduced below with emphasis added: 21. A computing system for facilitating history-based decision making in a television receiver, comprising: a memory; and a module stored on the memory that is executed by a processor in the television receiver to: receive from one or more television receivers device history data, wherein the device history data includes indications of a plurality of previously performed view operations to view one of a program or a channel that has been viewed, a plurality of previously performed delete recording operations that have deleted 1 We use “Appellant” to refer to “applicant” as defined in 37 C.F.R. § 1.42. Appellant identifies EchoStar Technologies L.L.C. as the real party in interest. Appeal Br. 1. Appeal 2019-003337 Application 15/166,119 3 a previously recorded program, or a plurality of previously performed record operations that have recorded a program, wherein the indications of the previously performed view operations each include a time or a time interval defining times that the view operation was previously performed by the associated television receiver, wherein the indications of the previously performed delete recording operations each include a time that the delete recording operation was performed by the associated television receiver, wherein the indications of the previously performed record operations each include a time or a time interval defining times that the record operation was previously recorded by the associated television receiver, and wherein the indications of the previously performed operations each include information that identifies the associated television receiver that performed the operation; receive an indication of a user-specified function to be performed by the television receiver, the function including one or more parameters that specify recording a program at an indicated time; accessing the device history data in response to receiving the indication; determine values for the one or more parameters, wherein the determined values for the one or more parameters are based on the received device history data, and wherein the determined value controls the record operation that is to be performed by an identified television receiver when the program is recorded by the identified television receiver; and cause the identified television receiver to perform the recording based upon the determined values for the one or more parameters. Appeal 2019-003337 Application 15/166,119 4 23. A computing system for facilitating history-based decision making m a television receiver, comprising: a memory; and a module stored on the memory, when executed, causes the computing system to: receive from one or more television receivers device history data, wherein the device history data includes indications of a plurality of previously performed view operations to view one of a program or a channel that has been viewed, a plurality of previously performed delete recording operations that have deleted a previously recorded program, or a plurality of previously performed record operations that have recorded a program that have been previously performed by a plurality of the television receivers, wherein the indications of the previously performed view operations each include a time or a time interval defining times that the view operation was previously performed, wherein the indications of the previously performed delete recording operations each include a time that the delete recording operation was performed, wherein the indications of the previously performed record operations each include a time or a time interval defining times that the record operation was previously recorded, and wherein the indications of the previously performed operations each include information that identifies the associated television receiver that performed the operation; receive an indication of a user-specified function to be performed by an identified one of the plurality of television receivers, the function to be performed by the television receiver including one or more parameters that specify recording a program at an indicated time; Appeal 2019-003337 Application 15/166,119 5 accessing the device history data in response to receiving the indication; determine values for the one or more parameters, based on the received device history data associated with the television receiver; determine that there is an insufficient amount of device history data about the identified television receiver to determine the values for the one or more parameters; in response to determining that there is insufficient device history data associated with the identified television receiver, determine the values for the one or more parameters based on the device history data received from at least one other television receiver of the plurality of television receivers; and cause the identified television receiver to perform the recording based upon the determined values for the one or more parameters. Appeal Br. 29–31 (Claims App.). B. The Rejection on Appeal The Examiner rejects claims 21–40 under 35 U.S.C. § 103(a) as unpatentable over Putterman (US 2005/0002638 A1; published Jan. 6, 2005), Higashi (US 2004/0133448 A1; published July 8, 2004), Shimy (US 2011/0072452 A1; published Mar. 24, 2011), and Sugiura (US 2009/0249204 A1; published Oct. 1, 2009). Final Act. 6–7.2 2 The rejection also cites applications incorporated by reference in Shimy, including the following: 1. Ellis (US 2005/0028208 A1; Feb. 3, 2005) (hereinafter “E208”); 2. Ellis (US 2002/0174430 A1; Nov. 21, 2002) (hereinafter “E430); and 3. Ellis (US 2003/0149988 A1; Aug. 7, 2003) (hereinafter “E988”). See, e.g., Final Act. 7. Appeal 2019-003337 Application 15/166,119 6 ANALYSIS A. Obviousness Rejection of Claim 21 Appellant argues that the Examiner asserts that the Putterman PVR system performs various operations based on indications of a plurality of view operations, indications of the delete recording operations, and indications of the record operations. However, even though the various Putterman PVR system operations might possibly relate to various aspects of recording, the operations of the Putterman PVR system are based on current operating conditions (in contrast to historical operating conditions stored in the device history data that are data of previously performed operations). Appeal Br. 11. We agree. The Examiner finds that Putterman discloses a client, as used herein, is any device that playback media . . . and the user queries the PVR system to determine other client tuned to be selected program. If other clients are tuned to the selected program, then the system displays a list of clients (devices) tuned to the program, . . . indicating television tuner is recording . . . (see include, but are not limited to, [¶¶ 34, 36]). Thus, device history data obviously includes indications of a plurality of previously performed view operations to view programs or channel, . . . must be received/included in order to display a list of clients tuned to the program or tuner is recording program, busy, free, etc. or to display a list of clients tuned to the program/currently playing the selected program as described in [¶¶ 34, 36]. (note: the client is defined, in [¶ 22], as any device that playback media). Putterman also discloses previously performed deleted operations or plurality of previously performed recorded operations that have recorded a program (see include, but are not limited to, [¶¶ 39, 43, 51, 51, Fig. 7]). Thus, the recording operation must be previously start performing on other client in order for system to display a list of client that tuned to program or the client is busy (the client is currently busy based on previously operation of tuning/recording). Appeal 2019-003337 Application 15/166,119 7 Ans. 27. We agree with Appellant that Putterman’s cited portions describing “other clients tuned [to] the selected program” (Putterman ¶ 34) relate to the clients’ current operating status. Similarly, Putterman’s assignment of “states to television tuners” describes the each tuner’s current state. See Putterman ¶ 36. Regarding the Examiner’s finding that “Putterman also discloses previously performed deleted operations or plurality of previously performed recorded operations that have recorded a program,” Putterman’s cited portions describe certain deletion operations, but the Examiner supplies no explanation regarding how the cited portions teach or suggest the claim limitations. Appellant also contends that “Shimy does not go so far as to disclose that device history, such as the Shimy event log, may be used to determine values for parameters that are used to record programs.” Reply Br. 31. We agree. The Examiner finds that the limitations of receiv[ing] an indication of a user-specified function to be performed by the television receiver, the function including one or more parameters that specify recording a program at an indicated time; accessing the device history data in response to receiving the indication; determine values for the one or more parameters, wherein the determined values for the one or more parameters are based on the received history data, and wherein the determined value controls the record operation that is to be performed by an identified television receiver when the program is recorded by the identified television receiver; and; Appeal 2019-003337 Application 15/166,119 8 cause the identified television receiver to perform the recording based upon the determined values for the one or more parameters are taught or suggested by Shimy, because receiving selection for recording/setting for recording of a particular program, and history data is retrieved to determine whether any recording is scheduled for recording at the select time, or [a] program [has] been recorded by previous user, buffer availability, etc. [I]f a program is previously recorded, or a conflict of time, etc. a notification is provide to allow user to resolve the recording or if there is no conflict or recording schedule, buffer availability, etc. is allowed, then recording setting/selection is accepted and user identified device/selected device will record the select program. Ans. 28–29, citing: 1. Shimy: Figs. 11, 14–16; E208: Figs. 11, 22, ¶¶ 218–220; 2. E988: Figs. 18a–18f, 26–31, ¶¶ 114, 167–169, 200; and 3. E430: Figs. 4, 6–7, 11; ¶¶ 23, 25, 36, 64, 170, 175, 197, 265, 266, 279, 292, 403. Here, the Examiner has appeared to restate the claim language and provide a string of citations to Shimy and the other related references, without sufficient analysis describing how Shimey’s particular teachings meet the recited claim language. We do not find sufficient support in Shimy’s cited portions or in the other related references’ cited portions for the Examiner’s position. Similarly, we do not find sufficient support in the references’ (Putterman, Shimy, Higashi, and Sugiura) cited portions for the Examiner’s position that these references, when combined, teach or suggest determin[ing] values for the one or more parameters, Appeal 2019-003337 Application 15/166,119 9 wherein the determined values for the one or more parameters are based on the received device history data, and wherein the determined value controls the record operation that is to be performed by an identified television receiver when the program is recorded by the identified television receiver. Accordingly, we are constrained by the record to reverse the Examiner’s rejection of independent claim 21 and independent claims 32 and 38 commensurate in scope, as well as dependent claims 22, 27–31, 33– 37, and 39. B. Obviousness Rejection of Claims 23 and 40 Appellant argues that the Shimy user preferences as discussed in [¶ 127] are unrelated to any type of determination “that there is an insufficient amount of device history data about the identified television receiver to determine the values for the one or more parameters.” At most, Shimy is expressly disclosing that user preferences may vary between different media devices, and then provides various example user preferences. There is simply no discussion whatsoever of any type of insufficiency in the amount of device history data in Shimy [¶ 127]. That is, Shimy [¶ 127] is unrelated to the recited features of Claims 23 and 40. Reply Br. 32. We agree. The Examiner finds that Shimy teaches or suggests the limitation of “determin[ing] that there is an insufficient amount of device history data about the identified television receiver to determine the values for the one or more parameters” because the limitation is read on determine, based on user preference(s), profile/setting that there is an insufficient amount of device history data such as no reference setting for permitting accessing the content or no Appeal 2019-003337 Application 15/166,119 10 access allowance based on parental control setting or program is not recorded previously on the device, program is not viewed on one device, not enough requests for recording at server, etc. Ans. 33, citing 1. Shimy: Figs. 15–16, ¶¶ 127, 128, 111–115, 170–175; 2. E208: Figs. 17–21, ¶¶ 19, 24–26, 120, 121; 3. E430: ¶¶ 23, 25, 175, 197, 0403; and 4. E988: Figs. 18a, 18f, 27. We do not find support in Shimy’s cited portions and in the other related references’ cited portions for the Examiner’s position. Similarly, we do not find support in the references’ (Putterman, Shimy, Higashi, and Sugiura) cited portions for the Examiner’s position that these references, when combined, teach or suggest the limitation “determin[ing] that there is an insufficient amount of device history data about the identified television receiver to determine the values for the one or more parameters.” Accordingly, we are constrained by the record to reverse the Examiner’s rejection of independent claim 23 dependent claim 40. CONCLUSION In summary: REVERSED Claims Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 21–40 103(a) Putterman, Higashi, Shimy, Sugiura 21–40 Copy with citationCopy as parenthetical citation