Ex Parte Gabriel et al

Patent Trial and Appeal BoardSep 24, 2012

10674680 (P.T.A.B. Sep. 24, 2012)

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. 10/674,680 09/29/2003 Michael Gabriel 12510/70 5087 26646 7590 09/24/2012 KENYON & KENYON LLP ONE BROADWAY NEW YORK, NY 10004 EXAMINER MYINT, DENNIS Y ART UNIT PAPER NUMBER 2162 MAIL DATE DELIVERY MODE 09/24/2012 PAPER 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. PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte MICHAEL GABRIEL, BRUCE PROBST, and JEFFREY DIBARTOLOMEO ____________ Appeal 2010-004517 Application 10/674,680 Technology Center 2100 ____________ Before THU A. DANG, CARL W. WHITEHEAD, JR., and GREGORY J. GONSALVES, Administrative Patent Judges. WHITEHEAD, JR., Administrative Patent Judge. DECISION ON APPEAL Appeal 2010-004517 Application 10/674,680 2 STATEMENT OF THE CASE Appellants appeal under 35 U.S.C. § 134 from a final rejection of claims 1 to 27 and 29. Appeal Brief 2. We have jurisdiction under 35 U.S.C. § 6(b) (2002). We affirm-in-part. Introduction The invention is directed to “a system and method for searching for media content.” Abstract. Illustrative Claim 1. A computer-implemented method for searching for media content, comprising: receiving, by a processor and from a user, a user profile which identifies preferred media distribution sources; receiving, by the processor, a search request from a user including at least one search criteria; searching, by a processor, a plurality of media distribution source types for media content based on the at least one search criteria and the user profile; generating, by the processor and from results of the searching, a schedule including scheduling information regarding the media content; and displaying the schedule to the user. Rejections on Appeal Claims 1-25 and 27 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Williamson (U.S. Patent Application Number 2003/0208767 A1; published November 6, 2003) and Willis (U.S. Patent Appeal 2010-004517 Application 10/674,680 3 Application Number 2004/0003097 A1; published January 1, 2004). Answer 4-30. Claim 26 stands rejected under 35 U.S.C. § 103(a) as being unpatentable over Williamson, Willis, and Sherr (U.S. Patent Application Number 2002/0154157 A1; published October 24, 2002). Answer 30-35. Claim 29 stands rejected under 35 U.S.C. § 103(a) as being unpatentable over Williamson, Willis, and Sheikh (U.S. Patent Application Number 2002/0078382 A1; published June 20, 2002). Answer 36-40. Issue on Appeal Do Williamson, Willis, Sherr, or Sheikh, alone or together, disclose or suggest generating a schedule from results of searching a plurality of media distribution source types, in which the schedule includes scheduling information regarding the media content from the plurality of media distribution sources types, as provided for in claims 1, 18, and 19? ANALYSIS 35 U.S.C. §103 rejection – Claims 1-7, 9-15, 18-22, and 24 Appellants argue that, “claims 1, 18, and 19 provide novel and counter-intuitive features in which, in response to a search request, a schedule is generated including scheduling information regarding media content from a plurality of media distribution source types, which, it is noted, often are scheduled in different manners.” Appeal Brief 8. Appellants acknowledge that the Examiner relies upon Willis to address the deficiency of Williamson’s failure to disclose searching a plurality of media distribution based on search criteria and user profile. Id. However, Appeal 2010-004517 Application 10/674,680 4 Appellants contend that Willis does not disclose or suggest generating a schedule based upon filtered articles because Willis provides a portal system in which user preferences are used for filtering articles from different sources. Id. Appellants further argue that, “[t]he different articles are determined to be relevant based on different ones of the set of preferences and are provided without regard to particular search criteria.” Appeal Brief 8.. “Instead, obtained articles are sorted based on a set of user preferences” whereas the “different articles are determined to be relevant based on different ones of the set of preferences and are provided without regard to particular search criteria.” Id. Appellants further contend, the modified or combined system of Williamson and Willis “may merely include a conventional television program schedule among the portal frames, but would not include a schedule including scheduling information from the plurality of media distribution source types.” Id. at 9. The Examiner notes that Appellants incorrectly stated the Examiner’s position in regard to Williamson because the Examiner finds Williamson to “disclose searching a plurality of media distribution source types for media content based on search criteria and a user profile.” Answer 42; see Williamson, paragraph [0084]. The Examiner also finds that the claim language does not require “generating a schedule based on the filtered articles.” Id. at 43. We agree with the Examiner and find that Appellants’ arguments are not persuasive because they are not commensurate with the scope of the claims. Further, the Examiner finds the combination of Willis and Williamson at the least suggests “generating a results information of a certain type Appeal 2010-004517 Application 10/674,680 5 gleaned from the various filtered articles” and therefore Appellants’ argument that “Willis et al. do not disclose providing its portal information responsive to search criteria” is not persuasive. Answer 43. We also do not find Appellants’ arguments to be persuasive and we agree with the Examiner for reasons set forth that the combination of Willis and Williamson discloses or at the least suggests “generating a results information . . . from the various filtered articles” limitation. See id. at 43-46. We also agree with the Examiner that Appellants’ arguments are not commensurate with the scope of the claims because the claims do not require “providing portal information responsive to search criteria.” Id. at 46. We do not find Appellants’ arguments that the combination of Willis and Williamson may include a conventional television program schedule but would not include a schedule with information form a plurality of media distribution source types to be persuasive for the reasons set forth by the Examiner. See Id. at 43-46. Therefore we sustain the Examiner’s obviousness rejection of claims 1-7, 9-15, 18-22, and 24 argued together by Appellants for the reasons set forth above. 35 U.S.C. §103 rejection – Claims 8, 16, 17, 23, 25, and 27 Appellants argue claims 8, 16, 17, 23, 25, and 27 in separate groups. Appeal Brief 10-13. We group these claims together here for clarity and brevity since Appellants have not presented any patentability arguments that specifically state how each of the claims is patentable over the prior art of record. In regard to dependent claims 8, 16, 17, 23, 25, and 27, we concur with the findings and reasons set forth by the Examiner in the action from Appeal 2010-004517 Application 10/674,680 6 which this appeal is taken and the reasons set forth by the Examiner in the Answer in response to Appellant’s Appeal Brief. See Answer 47-49. Therefore we sustain the Examiner’s obviousness rejection of claims 8, 16, 17, 23, 25, and 27 argued together by Appellants for the reasons set forth above. 35 U.S.C. §103 rejection – Claims 26 and 29 Claim 26 Appellants argue that combination of Willis’ sections (820, 825, 830, 835, 840, and 850 of Figure 8) does not include information generic to all media distribution sources types and does not include information specific to each separate media distribution source type as provided for in the context of claim 26. Appeal Brief 14. However, the Examiner does not rely upon Willis to disclose limitations noted above, the Examiner relies upon Sherr to disclose the limitations and address the deficiencies of Willis and Williamson. Answer 34-35. Appellants further argue in reference to Sherr: The Examiner refers to figure 9 and par. 94 of Sherr et al. as assertedly disclosing the recited first section. However, Sherr et al. merely indicate a page containing focused information about a single content item (movie) from a single media distribution source. See Sherr et al., par. 92. Further, Figure 9 of Sherr et al. contains additional information specific to the single content item from the single media distribution source. See Sherr et al., par. 93. Thus, the referenced sections, whether viewed alone or in combination, do not disclose a section having generic information that applies to all of the media distribution source types from which the results were obtained and not including information that is specific to Appeal 2010-004517 Application 10/674,680 7 any one of the media distribution source types, as provided for in the context of claim 26. Appeal Brief 14. The Examiner finds that Sherr teaches the claim limitations because: Sherr, Figure 9, i.e., “914, A romantic comedy about a sports agent who suddenly discovers his scruples”; Note that item 914 of Figure 9 of Sherr is a display section which includes generic information of the search results; Item 902 of said Figure 9 shows “specific information” and “source types” of reviews; Also note Paragraph 0094 of Sherr, i.e., “A synopsis 914 of the selected content item (such as a movie synopsis) may also be included on the focused page 909[sic]. Answer 49. We do not find Appellants’ arguments to be persuasive because we agree with the Examiner’s findings that Sherr discloses “a first section having generic information” as recited in claim 26. Further, we agree with the Examiner that the combination of Williamson, Willis, and Sherr discloses the invention recited in claim 26. On the issue of obviousness pursuant to 35 U.S.C § 103, the Supreme Court has stated that “the obviousness analysis cannot be confined by a formalistic conception of the words teaching, suggestion, and motivation.” KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 419 (2007). Further, the Court stated “[t]he combination of familiar elements according to known methods is likely to be obvious when it does no more than yield predictable results.” Id. at 416. “One of the ways in which a patent’s subject matter can be proved obvious is by noting that there existed at the time of the invention a known problem for which there was an obvious solution encompassed by the patent’s claims.” Id. at 419- 420. Appeal 2010-004517 Application 10/674,680 8 Therefore we sustain the Examiner’s obviousness rejection of claim 26 for the reason set forth above. Claim 29 The Examiner concludes that Appellants response to claim 29 is “directed to the response regarding claim 1 above, which clearly discusses how Williamson in view of Willis teaches the features in question.” Answer 50. However, Appellants’ arguments are not limited to the Williamson and Willis combination. Appellants argue that Sheikh does not address the deficiencies of Williamson/Willis in regard to claim 29: Thus, claim 29 provides for repeating a search using different criteria if the search initially does not return results. The Examiner refers to par. 0053 of Sheikh as assertedly disclosing the feature of “if the searching does not return any results: periodically searching the plurality of . . . types for media content, the periodic searching being unconstrained . . . .” However, Sheikh merely indicates that, if no result is returned, a sensor is re- executed. Sheikh does not refer to the use of different criteria for repeating a search. For this additional reason, the combination of Williamson et al., Willis et al., and Sheikh does not disclose or suggest all of the features of claim 29, so that the combination of Williamson et al., Willis et al., and Sheikh does not render unpatentable claim 29 for this additional reason. Appeal Brief 15-16. We find Appellants’ arguments to be persuasive because it is not evident that Sheikh addresses the deficiency of the Williamson/Willis combination as argued by Appellants. Appeal 2010-004517 Application 10/674,680 9 Therefore we do not sustain the Examiner’s obviousness rejection of claim 29 for the reasons set forth above. DECISION The rejections of claims 1 to 27 are sustained. The rejection of claim 29 is reversed. 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-IN-PART llw