Ex Parte JellisonDownload PDFPatent Trial and Appeal BoardMar 27, 201712917596 (P.T.A.B. Mar. 27, 2017) 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. 12/917,596 11/02/2010 David C. Jellison JR. 221-RCS-03-2010 1822 86548 7590 Garlick & Markison (IH) 106 E. 6th Street, Suite 900 Austin, TX 78701 03/29/2017 EXAMINER KIM, PAUL ART UNIT PAPER NUMBER 2169 NOTIFICATION DATE DELIVERY MODE 03/29/2017 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): MMurdock@ TEX ASPATENTS .COM ghmptocor@texaspatents.com bpierotti @ texaspatents .com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte DAVID C. JELLISON, JR. Appeal 2016-002295 Application 12/917,596 Technology Center 2100 Before MICHAEL J. STRAUSS, AMBER L. HAGY, and PHILLIP A. BENNETT, Administrative Patent Judges. STRAUSS, Administrative Patent Judge. DECISION ON APPEAL Appeal 2016-002295 Application 12/917,596 STATEMENT OF THE CASE Appellant appeals under 35 U.S.C. § 134(a) from a Final Rejection of claims 1—14. We have jurisdiction under 35 U.S.C. § 6(b). We affirm. THE INVENTION The claims are directed to rules-based playlist generation. Spec., Title. Claim 1, reproduced below, is representative of the claimed subject matter: 1. A method for use in a server, the method comprising: obtaining a first media list of media items, the media items ranked relative to other media items included in the first media list based on a performance level, by executing a program instruction in a computer system; adding to an intermediate list a predetermined number of top ranked media items from the first media list, by executing a program instruction in the computer system; selectively adding lower-ranked media items from the first media list to the intermediate list until a combined number of top- ranked and lower-ranked media items added to the intermediate list reaches a target number, each of the lower-ranked media items having a relative performance level inferior to the relative performance level of all of the top- ranked media items, by executing a program instruction in the computer system; in response to the combined number of top-ranked and lower- ranked media items reaching the target number: adding identifiers associated with the top-ranked and lower- ranked media items, by executing a program instruction in the computer system; and generating a first playlist based on the intermediate list, by executing a program instruction in the computer system. 2 Appeal 2016-002295 Application 12/917,596 REFERENCES The prior art relied upon by the Examiner in rejecting the claims on appeal is: Volk US 2004/0019497 A1 Jan. 29,2004 Miller US 7,730,420 B1 June 1,2010 Boulter US 2010/0205166 A1 Aug. 12,2010 REJECTIONS The Examiner made the following rejections: Claims 1, 4—6, 8, and 11—13 are rejected under 35 U.S.C. § 103(a) as being unpatentable over Volk and Boulter. Final Act. 2—7. Claims 2, 3, 9, and 10 are rejected under 35 U.S.C. § 103(a) as being unpatentable over Volk, Boulter, and Official Notice. Final Act. 7—8. Claims 7 and 14 are rejected under 35 U.S.C. § 103(a) as being unpatentable over Volk, Boulter, and Miller. Final Act. 8—10. APPELLANT’S CONTENTIONS 1. Neither Volk’s genre-based playlist nor Boulter’s user preference- based playlist teaches or suggests “creating a playlist using media items from a ranked list of media items (ranked on relative performance level).” App. Br. 13. 2. “Boulter’s ratings are directed to whether listeners consider lyric language ‘explicit’ (e.g., bad language) [but is] not a ranked song performance-based metric, relative to the other ranked songs (media items) [as required by claim 1].” App. Br. 14. 3. There is nothing in Boulter that suggests that unrated songs thereof are unranked and there is no basis for the assertion that unrated songs of Boulter would be inferior to “the relative 3 Appeal 2016-002295 Application 12/917,596 performance level of all of the top-ranked media items” [or] that an “explicit” song has a superior ranking to unrated songs in the context of the claimed invention [of claim 1], App. Br. 16. 4. Volk’s aggregation of user requests and compilation of a corresponding playlist does not include a determination of whether a ranking of a lower-ranked media has changed as required by claim 5. App. Br. 19. 5. Volk uses intentional ‘“cause and effect’ negative ratings without the requisite claimed ‘pseudo-randomly excluding’ element [of claim 5].” App. Br. 19. ANALYSIS We have reviewed the Examiner’s rejections in light of Appellant’s arguments the Examiner has erred. We disagree with Appellant’s conclusions. We adopt as our own (1) the findings and reasons set forth by the Examiner in the action from which this appeal is taken (Final Act. 2—12) and (2) the reasons set forth by the Examiner in the Examiner’s Answer in response to Appellant’s Appeal Brief (Ans. 2—10) and concur with the conclusions reached by the Examiner. We highlight the following for emphasis. Independent Claims 1 and 8 In connection with contention 1, Appellant argues the playlists of both Volk and Boulter omit ranking of media items based on relative performance level as required by claims 1 and 8. App. Br. 13, 18. The Examiner responds by concluding “the claimed ‘performance level’ of Appellant’s invention is broadly directed to popularity and historical playback metrics 4 Appeal 2016-002295 Application 12/917,596 related to a media item.” Ans. 3. The Examiner finds Volk’s disclosure of compiling a playlist based at least in part on the number of user requests for particular songs teaches or suggests ranking media items (i.e., songs) and the addition of songs with the highest scores teaches the disputed limitation of “adding to an intermediate list a predetermined number of top ranked media items from the first media list, by executing a program instruction in the computer system.” Ans. 3^4. The Examiner further finds categorization of Boulter’s top 1000 most popular songs as explicit, implicit, or unrated and ordering of the corresponding lists teaches or suggests generating a playlist by selecting a plurality of songs wherein the songs are ordered according to the scores of each song (e.g., the popularity of each song). Ans. 4. Appellant’s contention 1 is unpersuasive of Examiner error. As found by the Examiner (Ans. 3—4), both Volk and Boulter order their playlists based on criteria that, under a broad but reasonable construction, include adding both top-ranked and lower-ranked media items (i.e., songs) to a list (i.e., playlist) wherein each of the lower-ranked media items have a relative performance level inferior (i.e., a lower rankings based on criteria such as number of listener requests, offensiveness of lyrics, recency of being played, etc.) to the relative performance level of all of the top-ranked media items (i.e., those media items earlier added based on factors such as more listener requests, less offensive lyrics, etc.). We note in passing that, although claim 1 requires adding lower-ranked media items to the intermediate list, there is no requirement for only lower-ranked items to be added. Thus, adding media items including both lower-ranked and high-ranked media items teaches or suggests the disputed step of “selectively adding lower-ranked media items . . . .” 5 Appeal 2016-002295 Application 12/917,596 In connection with contention 2, Appellant argues Boulter’s ratings are indicators of offensive language, not a ranking and indicator of inferior performance of songs as those terms are used by the claims. App. Br. 13—14. The Examiner responds by providing a detailed explanation of the teachings derived from Boulter’s disclosure. Ans. 5—6. For example, the Examiner finds Boulter’s categorization of songs into respective sorted lists (i.e., explicit, implicit, and unranked songs) and then randomly adding some from each list into a playlist teaches or suggests selectively adding media items from a first list to an intermediate list. Ans. 5. The Examiner further finds Volk teaches songs are arranged according to scores assigned by selection engine 1040 (i.e., the songs are ranked) and that “the songs with the highest scores may be added to or become part of the playlist.” Id. citing Volk | 83. The Examiner concludes “[accordingly, it would have been obvious to one of ordinary skill in the art to improve the prior art of Volk with that of Boulter for the predictable result of adding songs according to their rank within each list.” Id. at 5. Appellant’s attack on Boulter individually is unpersuasive of Examiner error. It is the combination of Boulter and Volk, not Boulter alone, that teaches or suggests the disputed limitation of “selectively adding lower- ranked media items from the first media list to the intermediate list.” “Non obviousness cannot be established by attacking references individually where the rejection is based upon the teachings of a combination of references.” In re Merck & Co., Inc., 800 F.2d 1091, 1097 (Fed. Cir. 1986) (citing In re Keller, 642 F.2d 413, 425 (CCPA 1981)). Volk’s disclosure of compiling a playlist according to the songs with the highest scores, the “playlist [including] enough songs to fill up the predetermined amount of 6 Appeal 2016-002295 Application 12/917,596 time between transmission of playlists by the station server 212 (e.g., one hour worth of songs)” (Ans. 5, Final Act. 3; Boulter | 84), in combination with Boulter’s ranking and playlist creation, teaches or suggests the entirety of the disputed limitation including adding lower-ranked media items until a combined number of top-ranked and lower-ranked media items added to the intermediate list reaches a target number (e.g., one hour of programming). In connection with contention 3, Appellant argues Boulter’s rating system of offensive lyrics fails to teach or suggest superior versus inferior rankings of songs. App. Br. 16. In response the Examiner finds “Boulter discloses that ‘the explicit, implicit, and unrated lists built in the last step are taken and ordered in descending order by score, or rating, using a quicksort or other algorithm.’” Ans. 7 (citing Boulter 179). The Examiner further finds “Volk discloses that ‘ [t]he songs in the song database 222 are thus sorted and arranged according to the scores assigned by the selection engine 1040’ and ‘the songs with the highest scores may be added to or become part of the playlist.’” Id citing Volk | 83. Appellant’s arguments in support of contention 3 are unpersuasive of Examiner error. Again, Appellant focuses on Boulter’s rating system while ignoring Boulter’s and Volk’s teachings of scoring and ranking songs. Furthermore, Appellant fails to provide sufficient evidence or argument that, under a broad but reasonable interpretation of inferior and superior levels of performance, criteria for determining performance levels would not be based on offensiveness of lyrics. For the reasons discussed supra, Appellant’s contentions of error in the rejection of independent claims 1 and 8 are unpersuasive. Accordingly, we sustain the rejection of independent claims 1 and 8 under 35 U.S.C. 7 Appeal 2016-002295 Application 12/917,596 § 103(a) over Volk and Boulter together with the rejections of dependent claims 2-4, 6, 7, 9-11, 13, and 14, which are not argued separately with particularity. Dependent Claims 5 and 12 In connection with contention 4, Appellant argues Volk’s aggregation of users’ playlists fails to teach or suggest “determining whether a current ranking of the at least one lower-ranked media item is different from a previous ranking of the at least one lower-ranked media item [as required by claims 5 and 12].” App. Br. 19. The Examiner responds by finding Volk’s exclusion of songs too frequently or recently played lowers the ranking of the song teaches or suggests the disputed limitation. Ans. 8—9. We agree with the Examiner. Volk’s lowering of the ranking of a song is made based on a determination that a current rank of a song is lower than presently indicated because it has been over-played, thus teaching or suggesting the current ranking (i.e., Volk’s lowered ranking determined to be appropriate to reflect the song has been too frequently or recently played) is different from a previous ranking (Volk’s ranking prior to updating). See Volk | 81. In connection with contention 5, Appellant argues Volk intentionally skips ineligible songs, i.e., songs that are not available. App. Br. 19. The Examiner responds by finding, under a broadest reasonable interpretation of the disputed limitation, Volk’s permissive exclusion of recently played songs (a song may be excluded) teaches or suggests pseudo-randomly excluding a lower-ranked media item. Ans. 9. According to the Examiner “one may assert that human behavior may be considered ‘pseudorandom’.” Id. We are unpersuaded of Examiner error. Appellant provides insufficient evidence that pseudo-random exclusion of a lower-ranked media 8 Appeal 2016-002295 Application 12/917,596 item excludes any “cause and effect” negative trigger. See App. Br. 19. For example, Appellant fails to identify persuasive evidence of any requirement imposed by the “pseudo-randomly excluding” limitation not at least suggested by Volk’s disclosure that songs too-often played may be provided with a negative rating. In the absence of sufficient rebuttal evidence1, Appellant’s contention 5 is unpersuasive of Examiner error. For the reasons discussed supra, Appellant’s contentions of error in the rejection of dependent claims 5 and 12 are unpersuasive and, accordingly, we sustain the rejection of those claims under 35 U.S.C. § 103(a) over Volk and Boulter. DECISION We affirm the Examiner’s decision to reject claims 1—14. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a)(l)(iv). AFFIRMED 1 See In re Geisler, 116 F.3d 1465, 1470 (Fed. Cir. 1997) (noting mere attorney argument is “not the kind of factual evidence that is required to rebut a prima facie case of obviousness”); In re De Blauwe, 736 F.2d 699, 705 (Fed. Cir. 1984) (explaining arguments of counsel cannot take the place of factually supported objective evidence). 9 Copy with citationCopy as parenthetical citation