Ex Parte Kazantsev et al

Patent Trial and Appeal Board

Dec 20, 2012

10171352 (P.T.A.B. Dec. 20, 2012)

UNITED STATES PATENT AND TRADEMARKOFFICE
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.
10/171,352 06/11/2002 Sergei Kazantsev 007287.00011 2210
22907 7590 12/20/2012
BANNER & WITCOFF, LTD.
1100 13th STREET, N.W.
SUITE 1200
WASHINGTON, DC 20005-4051
EXAMINER
HICKS, CHARLES N
ART UNIT PAPER NUMBER
2424
MAIL DATE DELIVERY MODE
12/20/2012 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 SERGEI KAZANTSEV, LEV OLKHA, EDUARD ZASLAVSKY,
and SERGEY TURIVNENKO
____________

Appeal 2010-006835
Application 10/171,352
Technology Center 2400
____________

Before JOSEPH F. RUGGIERO, MARC S. HOFF, and JOHN A. EVANS,
Administrative Patent Judges.

RUGGIERO, Administrative Patent Judge.

DECISION ON APPEAL
STATEMENT OF THE CASE
Appellants appeal under 35 U.S.C. § 134(a) from the Final Rejection
of claims 1, 2, 4-8, 10, 11, 14, 15, 17-20, 22, and 23. Claims 3, 9, 12, 13,
16, and 21 have been canceled. We have jurisdiction under 35 U.S.C. §
6(b).
We affirm-in-part.
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Application 10/171,352

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Rather than reiterate the arguments of Appellants and the Examiner,
reference is made to the Appeal Brief (filed Sep. 8, 2009), the Examiner’s
Answer (mailed Dec. 16, 2009), and the Reply Brief (filed Feb. 16, 2010).
Only those arguments actually made by Appellants have been considered in
this decision. Arguments which Appellants could have made but chose not
to make in the Briefs have not been considered and are deemed to be waived
(see 37 C.F.R. § 41.37(c)(1)(vii)).

Appellants’ Invention
Appellants’ invention relates to an electronic program guide in which
a first view is displayed including graphical indicators corresponding to a
plurality of broadcast channels. Upon detection of the selection of a first
graphical indicator, a second view is displayed in response to the detected
input wherein programming information relating to a first broadcast channel
corresponding to the selected first graphical indicator is displayed in a
hierarchical manner. See generally Spec. ¶ ¶ [0004-0005]).

Claims 1 and 11 are illustrative of the invention and read as follows
1. A method comprising:
displaying a first view including a plurality of graphical indicators
corresponding to a plurality of broadcast channels;
detecting input selecting a first graphical indicator of the plurality of
graphical indicators; and
displaying a second view in response to the detected input, wherein
programming information relating to a first broadcast channel corresponding
to the selected first graphical indicator is displayed;
wherein displaying at least one of the first view and the second view
comprises displaying the plurality of graphical indicators in a hierarchical
manner wherein each graphical indicator is displayed as a node in a tree;
receiving a selection of a broadcast program of the first broadcast
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channel;
determining whether the broadcast program is currently being
broadcast; and
tuning to a channel for the broadcast program if the broadcast program is
currently being broadcast, and scheduling the broadcast program for
recording if the broadcast program is not currently being broadcast.

11. A method comprising:
receiving programming data comprising a broadcast schedule relating
to programs of at least one broadcast channel; and
displaying the programming data in a hierarchical form;
receiving input from a user, the input associated with modifying a
portion of the displayed programming data; and
in response to receiving said input, expanding the portion of the
programming data to display at least a portion of the broadcast schedule if
the at least a portion of the broadcast schedule is not currently displayed,
otherwise, collapsing the portion of the programming data to hide the
at least a portion of the broadcast schedule, while still displaying the
programming date in a hierarchical form.

The Examiner’s Rejection
The Examiner relies on the following prior art reference to show
unpatentability:
Finseth US 6,754,906 B1 Jun. 22, 2004
(filed Mar. 24, 2000)

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Application 10/171,352

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Claims 1, 2, 4-8, 10, 11, 14, 15, 17-20, 22, and 23, all of the appealed
claims stand rejected under 35 U.S.C. § 102(b) as being anticipated by
Finseth.1

ANALYSIS
Claims 1, 2, 4-8, 10, 18, and 20
Appellants’ arguments with respect to the anticipation rejection of
independent claims 1 and 18 focus on the contention that Finseth does not
disclose the tuning to a broadcast program or scheduling the broadcast
program for recording based on the program status. According to
Appellants, Finseth merely provides options for a user to select to view or to
record a program and, therefore, the tuning to a program or the scheduling of
a recording of the program is not based on whether a determination has been
made that a program is currently being broadcast (App. Br. 5-6; Reply Br.
2).
We find Appellants’ arguments unpersuasive, as they are not
commensurate with the scope of claims 1 and 18. Appellants’ arguments
impliedly suggest that the selection to view or to record a broadcast program
is performed automatically, i.e., without user intervention, based solely on
the result of the determination as to whether a program is currently being
broadcast. We find no such requirement in claims 1 and 18.

1 The Examiner’s anticipation rejection should properly be based on
35 U.S.C. § 102(e) rather than 35 U.S.C. § 102(b), since Finseth’s filing date
of March 24, 2000 is before the Provisional Application, 60/309507,
effective filing date of August 1, 2001, although Finseth’s issue date of June
22, 2004 is after the August 1, 2001 filing date of the application.
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As correctly interpreted by the Examiner (Ans. 4 and 10), and not
disputed by Appellants, Finseth discloses the determination of whether a
program is currently being broadcast or whether it is scheduled to be
broadcast at a future time, and presents the determination results to a user in
the form of a color-coded display in an electronic program guide (Figs. 4-8;
col. 14, ll. 33-65).
Further included in the electronic program guide of Finseth is a set of
user-links providing a user the option of selecting various options such as
tuning to a broadcast program or scheduling a broadcast program to record
(col. 20, ll. 1-45). It is apparent from Finseth, as suggested by the Examiner
(Ans. 10), that the validity of the selectable options presented to a user is
dependent upon the determination of whether a program is currently being
broadcast. In other words, a selection to tune to a broadcast cannot be made
if the program is not currently being broadcast. Similarly, if a program is
not being currently broadcast, a user can validly select the option to schedule
recording of the program when it is scheduled to be broadcast.
In view of the above discussion, we conclude that the Examiner did
not err in finding that all of the claimed limitations are present in the
disclosure of Finseth. Accordingly, the Examiner’s 35 U.S.C. § 102
rejection of independent claims 1 and 18, as well as dependent claims 2, 4-8,
10, and 20 not separately argued by Appellants, is sustained.

Claims 11, 14, 15, 17, 19, 22, and 23
We do not sustain the Examiner’s anticipation rejection of
independent claims 11 and 19, nor the anticipation rejection of claims 14,
15, 17, 22, and 23 dependent thereon. We agree with Appellants that neither
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the cited portions of Finseth relied upon by the Examiner, nor any other
description in Finseth, discloses the expanding and collapsing of displayed
programming data in response to received user input.
Our characterization of the disclosure of Finseth coincides with that of
Appellants, i.e., Finseth merely discloses that channels and/or programs are
displayed in organizational levels and in organizational groups (Figs. 4-8).
For example, the cited column 16, lines 20-55 portion of Finseth merely
describes a programming display using channels as an organizational level
and the use of three-dimensional space to arrange program titles and
organization categories (Figs. 7 and 8A). Similarly, the relied upon column
18, lines 18-44 portion of Finseth merely shows that program titles can be
layered in an x-y plane along the z-axis with programs scheduled at later
times appearing farthest into the display. The cited column 19, lines 1-15
portion of Finseth similarly has no disclosure of expanding or collapsing of
displayed programming data but, instead, merely discloses that user links
can include organizational categories or program titles.
In view of the above discussion, we find that the Examiner (Ans. 6, 8,
9, and 11) has relied upon conclusory statements which do not adequately
address the specific claimed limitations and are not sufficient to support a
rejection based on anticipation. Accordingly, since we find that all of the
claim limitations are not present in the disclosure of Finseth, we do not
sustain the Examiner’s 35 U.S.C. § 102 rejection of independent claims 11
and 19, nor of claims 14, 15, 17, 22, and 23 dependent thereon.

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CONCLUSION
Based on the analysis above, we conclude that Appellants have not
shown that the Examiner erred in rejecting claims 1, 2, 4-8, 10, 18, and 20,
but have shown that the Examiner erred in rejecting claims 11, 14, 15, 17,
19, 22, and 23.

DECISION2
The Examiner’s decision rejecting claims 1, 2, 4-8, 10, 11, 14, 15, 17-
20, 22, and 23 under 35 U.S.C. § 102 is affirmed-in-part.
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-IN-PART

gvw

2 We have decided the appeal before us. However, should there be
further prosecution with respect to claims 18 and 19, the Examiner’s
attention is directed to In re Nuijten, 500 F.3d 1346 (Fed. Cir. 2007), and
Subject Matter Eligibility of Computer Readable Media, 1351 OFF. GAZ.
PAT. OFFICE 212 (Feb. 23, 2010); see also U.S. Patent & Trademark
Office, Interim Examination Instructions for Evaluating Subject Matter
Eligibility Under 35 U.S.C. § 101, at 2 (Aug. 2009), available at
http://www.uspto.gov/patents/law/comments/2009-08-
25_interim_l0l_instructions.pdf.