Don Eklund

Patent Trials and Appeals Board

Dec 7, 2021

2020006156 (P.T.A.B. Dec. 7, 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.
12/722,300 03/11/2010 Don C. Eklund II 113748-040UT1 2817
103865 7590 12/07/2021
Procopio - SPE
525 B Street
Suite 2200
San Diego, CA 92101
EXAMINER
GMAHL, NAVNEET K
ART UNIT PAPER NUMBER
2166
NOTIFICATION DATE DELIVERY MODE
12/07/2021 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):
docketing@procopio.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte DON C. EKLUND II
____________

Appeal 2020-006156
Application 12/722,300
Technology Center 2100
____________

Before JOHN P. PINKERTON, NORMAN H. BEAMER,
and JAMES W. DEJMEK, Administrative Patent Judges.

BEAMER, Administrative Patent Judge.

DECISION ON APPEAL
Appellant1 appeals under 35 U.S.C. § 134(a) from the Examiner’s
Final Rejection of claims 1–13, 17, 18, and 21–23. Claims 14–16, 19, 20,
24, and 25 are cancelled. We have jurisdiction over the pending rejected
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 (2019). Appellant identifies Sony Corporation and Sony
Pictures Entertainment Inc. as the real parties in interest. (Appeal Br. 2.)

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THE INVENTION
Appellant’s disclosed and claimed invention is directed to accessing
item information for items selected from an image. (Abstr.)
Independent claim 1, reproduced below, is illustrative of the subject
matter on appeal:
1. A method of accessing item information for items selected
from an image of a video, the method comprising:
presenting the video to a viewer, wherein each image of
the video includes a plurality of selectable items for selection
by the viewer;
enabling the viewer to select an item from the plurality of
selectable items;
determining a position of the selected item in the image
of the video along with timing information of the image of the
video;
accessing a first remote database to identify the video
with a name of the video;
accessing a second remote database to retrieve an item
table for the video having entries including the positions of the
items having x-y coordinate ranges, frame numbers, and
identifiers for the plurality of selectable items;
determining an identifier for the selected item in the
image of the video by comparing the timing information of the
image to the frame numbers and the position of the selected
item to the x-y coordinate ranges in the item table retrieved by
the second remote database;
accessing a third remote database to query an item
database and retrieve relevant information corresponding to the
determined identifier; and
presenting the relevant information corresponding to the
selected item to the viewer on a display.
(Appeal Br. 20 (Claims App.).)
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REJECTIONS
The Examiner rejected claims 1–13, 17, 18, and 21–23 under
35 U.S.C. § 103 as being unpatentable over Cope (US 2009/0024617 Al,
pub. Jan. 22, 2009), Kahlbaum et al. (US 2010/0228736 Al, pub. Sept. 9,
2010), and Bauer et al. (US 2011/0022589 Al, pub. Jan. 27. 2011). (Final
Act. 9–24.)
ISSUE ON APPEAL
Appellant’s arguments present the following issue:2
Whether the Examiner erred in finding the combination of Cope,
Kahlbaum, and Bauer would have taught or suggested the fourth, fifth and
seventh limitations of independent claim 1, referred to herein as the first,
second and third database limitations, respectively, and the commensurate
limitations of independent claims 5, 8, 17, 18, 21, and 23. (Appeal Br. 11–
18.)
ANALYSIS
We have reviewed the Examiner’s rejection in light of Appellant’s
arguments. Arguments Appellant could have made, but chose not to make
are deemed to be waived. See 37 C.F.R. § 41.37(c)(1)(iv). We disagree
with Appellant’s arguments, and we adopt as our own: (1) the pertinent
findings and reasons set forth by the Examiner in the Action from which this
appeal is taken (Final Act. 9–24); and (2) the corresponding reasons set forth

2 Rather than reiterate the arguments of Appellant and the positions of the
Examiner, we refer to the Appeal Brief (filed April 14, 2020) (Appeal Br.);
the Final Office Action (mailed Sept. 19, 2019) (Final Act.); and the
Examiner’s Answer (mailed June 26, 2020) (Ans.) for the respective details.
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by the Examiner in the Examiner’s Answer in response to Appellant’s
Appeal Brief. (Ans. 3–7.) We concur with the applicable conclusions
reached by the Examiner and emphasize the following.
For the first database limitation of claim 1, the Examiner relies on the
disclosure in Kahlbaum of the use of a hash value associated with a video on
a Blu-ray disc (for example) to access a remote database to obtain metadata,
including the title of the video. (Final Act. 12; Ans. 3–5; Kahlbaum, Figs. 2,
7, ¶¶ 54–55, 59, 74, 100.) For the second database limitation of claim 1, the
Examiner relies on the disclosure in Cope of a video-overlay database that is
used to track objects on a visual display of a video signal, with the database
containing the positions of the x-y coordinate ranges, frame numbers, and
identifiers for the objects. (Final Act. 10–11; Ans. 5–6; Cope, Figs. 1, 4, 14,
17, ¶¶ 7, 91, 93–98, 125, 131, 133.) For the third database limitation of
claim 1, the Examiner relies on the disclosure in Bauer of databases from
which auxiliary content linked with media content can be accessed. (Final
Act. 13–14; Ans. 5–6; Bauer, Figs. 1, 7, ¶¶ 27, 31–32, 97–98.)
Appellant argues, for the first database limitation, “although
Kahlbaum teaches looking up the metadata that describes the contents of a
digital recording including movie title . . . given the unique identifier (e.g.,
hash value), this is different than accessing a first remote database to identify
the video with a name of the video.” (Appeal Br. 14–15.) Appellant further
argues that the look-up of Kahlbaum does not “show tabulated items that are
in each frame of the movie.” (Id. at 15.) The Examiner responds that the
first database limitation is “taught in Kahlbaum when combined with Cope,”
and points out that Appellant “admits that Kahlbaum specifically states that
the unique identifier (hash) is used to lookup the metadata which includes
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5
the movie.” (Ans. 45.) The Examiner also states that “[n]owhere in [the
first database] limitation (d) is it requiring the showing of tabulated items
that are in each frame of the movie.” (Id. at 5.)
For the second database limitation, Appellant argues, “there is no
suggestion in Cope about an item table for the video in which entries include
tabulated items for each frame including x-y coordinate ranges, frame
numbers, and identifiers for the selectable items.” (Id. at 15.) However, the
Examiner points to Figure 17 of Cope, explaining:
Cope in figure 17 depicts records of objects tracked and stored,
it shows the object identifier, the pointing time in the video and
the spatial (x-y) coordinates. The spatial coordinates discloses
the x-y coordinate positions of the items. The pointing time
discloses the frame number (or its equivalent) that shows when
in the video the object was tracked. The object identifier
identifies the plurality of selectable items. This is explained in
paragraph 125 of Cope as “The authoring computer 240 records
an instant of time t.sup.+ and a position (x.sub.0, y.sub.0) of a
point, which the user selects, on the display screen of the
authoring computer.
(Ans. 5.)
For the third database limitation, Appellant argues:
[T]there is no suggestion in Bauer about accessing a remote
database to retrieve relevant information corresponding to the
identifier (which was determined in [the second database]
limitation (f) for the selected item in the image of the video by
comparing the timing information of the image to the frame
numbers and the position of the selected item to the x-y
coordinate ranges in the item table retrieved by the second
remote database).
(Id. at 17.) Again, the Examiner responds that the third database limitation
“is taught by Cope in view of Bauer.” (And. 7.)
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Appellant does not reply to any of the Examiner’s responses, and we
not persuaded that the Examiner’s findings are incorrect. Appellant’s
arguments are unpersuasive as conclusory and focusing on each reference
individually, whereas the Examiner relies on the combination of references.
See In re Geisler, 116 F.3d 1465, 1470 (Fed. Cir. 1997) (“attorney argument
[is] not the kind of factual evidence that is required to rebut a prima facie
case of obviousness”). Non-obviousness cannot be established by attacking
references individually where, as here, the ground of unpatentability is based
upon the teachings of a combination of references. In re Merck & Co., Inc.,
800 F.2d 1091, 1097 (Fed. Cir. 1986). Rather, the test for obviousness is
whether the combination of references, taken as a whole, would have
suggested the patentee’s invention to a person having ordinary skill in the
art. In re Keller, 642 F.2d 413, 425 (CCPA 1981).
Therefore, we sustain the rejections of independent claims 1, 5, 8, 17,
18, 21, and 23 over Cope, Kahlbaum, and Bauer. We also sustain the
rejections of claims 2–4, 6–7, 9–13, and 22, which depend from claims 1, 5,
8, or 21.
DECISION SUMMARY
In summary:
Claim(s)
Rejected
35
U.S.C. §
Reference(s)/Basis Affirmed Reversed
1–13, 17, 18,
21–23
103 Cope, Kahlbaum,
Bauer
1–13, 17, 18,
21–23

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Application 12/722,300

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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)(1)(iv).
AFFIRMED