Ex Parte Kelly

Patent Trial and Appeal Board

Jun 25, 2014

11719548 (P.T.A.B. Jun. 25, 2014)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte DECLAN PATRICK KELLY
__________

Appeal 2011-011534
Application 11/719,548
Technology Center 2100
____________

Before HUBERT C. LORIN, MICHAEL W. KIM, and
MICHAEL C. ASTORINO, Administrative Patent Judges.

LORIN, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE
Declan Patrick Kelly (Appellant) seeks our review under 35 U.S.C.
§ 134 of the final rejection of claims 1–6 and 8–15. We have jurisdiction
under 35 U.S.C. § 6(b) (2002).

SUMMARY OF DECISION
We AFFIRM.1

1 Our decision will make reference to the Appellant’s Appeal Brief (“App.
Br.,” filed Mar. 14, 2011) and Reply Brief (“Reply Br.,” filed Jul. 5, 2011),
and the Examiner’s Answer (“Ans.,” mailed May 2, 2011).
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Application 11/719,548

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THE INVENTION
Claim 1, reproduced below, is illustrative of the subject matter on
appeal.
1. A method, operable in a computer system, for estimating a
user’s possible interest level in a file, comprising the steps of:
monitoring a user’s actions on the file;
obtaining a currently available possible interest level of the user
regarding the file;
updating the currently available possible interest level of the
user regarding the file according to the user’s actions, wherein after a
minimum time has expired, said interest level is increased in
proportion to a time of the user’s action when the time is greater than
a standard time and decreased in proportion to the time of the user’s
action when the time is less than the standard time; and
associating the updated possible interest level with the file in
the form of metadata.

THE REJECTIONS
The Examiner relies upon the following as evidence of
unpatentability:
Herz
Miller
Hosken
Barsness

US 5,754,939
US 6,108,493
US 6,438,579 B1
US 2003/0115585 A1
May 19, 1998
Aug. 22, 2000
Aug. 20, 2002
Jun. 19, 2003
The following rejections are before us for review:
1. Claims 1–3, 5, 6, 8, 9 and 11–15 are rejected under 35 U.S.C. § 103(a)
as being unpatentable over Herz and Barsness.
2. Claim 4 is rejected under 35 U.S.C. § 103(a) as being unpatentable
over Herz, Barsness, and Hosken.
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3. Claim 10 is rejected under 35 U.S.C. § 103(a) as being unpatentable
over Herz, Barsness, and Miller.

ISSUES
Would it have been obvious to one of ordinary skill in the art, given
the combination of Herz and Barsness, to estimate a user’s possible interest
level in a file by monitoring a user’s actions on a file and determining “after
a minimum time has expired [whether] the interest level is increased in
proportion to a time of the user’s actions when the time is greater than a
standard time and decreased in proportion to the time of the user’s action
when the time is less than the standard time” (claim 1)?

FINDINGS OF FACT
We rely on the Examiner’s factual findings stated in the Answer.
Additional findings of fact may appear in the Analysis below.

ANALYSIS
The rejection of claims 1–3, 5, 6, 8, 9 and 11–15 under 35 U.S.C. § 103(a)
as being unpatentable over Herz and Barsness.
The Appellant argued claims 1–3, 5, 6, 8, 9 and 11–15 as a group
(App. Br. 11–23). We select claim 1 as the representative claim for this
group, and the remaining claims 2, 3, 5, 6, 8, 9, and 11–15 stand or fall with
claim 1. 37 C.F.R. § 41.37(c)(1)(vii) (2007).
At issue is the claim limitation “after a minimum time has expired [ ]
the interest level is increased in proportion to a time of the user’s actions
when the time is greater than a standard time and decreased in proportion to
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the time of the user’s action when the time is less than the standard time”
(claim 1). This limitation is construed reasonably and broadly to cover a
correlation between a frequency of a user’s actions with respect to a file and
an interest in the file during a set period of time; that is, if a user acts on a
file more often than normal, the user is considered to have a higher level of
interest in the file than if he/she acts on the file less often than normal.
Herz is directed to an electronic system for retrieving targeted
information. The passage at column 7, lines 26–29 of Herz relied upon by
the Examiner (Ans. 4) is evidence that the claimed monitoring step was
known in the prior art at the time of the invention. There is described a
filtering system “noting which articles the user reads.” Herz, col. 7, l. 26. It
is implicit in the act of noting that the user’s actions have been monitored.
Accordingly, Herz discloses monitoring a user’s actions (e.g., viewing a file)
with respect to a file.
Furthermore, Herz implicitly discloses determining, based on said
monitoring, the user’s interest level in that file — the level of interest
correlating with the time spent viewing. As the Examiner correctly explains:
Herz teaches a user's interest in a document is increased if it is
viewed, increased again if more than 30 seconds were spent
viewing, and further increased again if more than a minute was
spent viewing (Herz, col. 17 lines 41-47). Thus, Herz can be
seen to teach that the interest level is increased in proportion to
a time - i.e. by adding interest level points according to
increments of time . . .

. . . [T]he “stepped accumulation or points” as acknowledged by
Appellant directly correlates “in proportion to the viewing
time”. That is, in Herz, the longer the time that a user spends
viewing a document the more the interest points are increased
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(see Herz, col. 17, lines 40-49). Thus, the increase is seen in
proportion of viewing time.
Ans. 21–22.
The Appellant concedes that
Herz teaches that when a user’s interest in a file is greater than
30 seconds then points are added to the target summary profile
and as the viewer (user) continues to view the file for greater
than 1 minute, additional points are added to the target
summary profile. Herz further discloses that points may be
added to the target summary based on a number of pages
viewed.
App. Br. 14. But the Appellant makes a number of arguments challenging
the rejection of claim 1.
First, the Appellant argues that “[t]he filtering system of Herz, thus,
provides for an estimation of user’s interest in future documents and not
necessarily the interest in the current document.” App. Br. 14. This
argument is unpersuasive because, notwithstanding that claim 1 makes no
mention of a “current document” (all that is required is an interest level in “a
file”), the sections in Herz the Examiner cited (see Ans. 5) show how to
gauge a user’s interest in a document. See e.g., Herz, col. 17, ll. 38–48 (“A
typical formula for assessing interest in a document via passive
feedback . . .”) (emphasis added). The interest points are associated with
said file, not multiple files, and this is evidenced by the fact that Herz
displays a corresponding visual indicator on the user’s screen. See Herz, col.
18, ll. 4–8 (“sliding bar or indictor needle on the user’s screen”).
Second, the Appellant argues that Herz fails to disclose the claim
element of “obtaining currently available possible interest level of the user
regarding the file.” App. Br. 15.
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This argument is unpersuasive for the reasons given by the Examiner;
to wit,
Herz teaches “obtaining a currently available interest level of
the user (col. 17 line 25-28; e.g. a potentially interesting object
is identified (i.e. current interest) and the user provides
feedback (i.e. updated interest) as to whether it really is of
interest, col. 17 line 40; e.g. interest levels begin on a scale
from 0-10 and are updated accordingly to feedback; col. 18 line
5; e.g. a sliding bar indicating interest describes a “beginning
position” of the indicator as a current interest level; col. 58 line
65-col. 59 line 2; e.g. points are added as the depth of interest
increases - for example if a second page is accessed +0.2 (seen
as a “current interest”), if all pages are accessed +0.2) regarding
the file (col. 17 lines 40-45; e.g. Herz presents a formula for
assessing user interest).
Ans. 20. The claim limitation “currently available possible interest level of
the user regarding the file” reads on Herz’s identification of a potentially
interesting object.
Third, the Appellant argues that “Herz cannot disclose the element of
“associating the updated possible interest level with the file in the form of
metadata . . .” “the metadata is associated with a type of file and not
associated with a particular file.” App. Br. 15.
This argument is unpersuasive. We agree with the Examiner
that Herz associates “interest points” (col. 17, lines 40-51) with
a document based on a user’s viewing actions. The points are
incremented based on, for example, the length of time a user
spends viewing the document (col. 17, lines 40-49).
Accordingly, Herz teaches updating a user’s interest level and
associating this level with the file in the form of interest points.
Because these points are associated to a file, they can be
interpreted as metadata that describes, or is attributed to the file.
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Ans. 20-21. These interest points are metadata as that term is construed
reasonably and broadly. The Specification defines “metadata” as “data
about data used for describing information about the files. Metadata could
provide standard, general description method and identification tool for files
in various forms.” Spec. 1, ll. 17–19. In light of the Specification’s
definition, the claim “metadata” covers Herz’s interest points because said
points are describing the user's interest level.
Fourth, the Appellant argues:
[T]he increase disclosed by Herz is not in proportion to the
viewing time, as is recited in the claims. Rather Herz teaches a
stepped accumulation of points based on whether a particular
viewing time has been exceeded. For example, Herz fails to
teach any increase or decrease in interest when the viewing time
is between 30 seconds and 1 minute (assuming that the 30
seconds corresponds to the minimum time and the 1 minute
time corresponds to the standard time).
App. Br. 16.
This argument is unpersuasive. We agree with the Examiner. Herz’s
disclosure of two interest points for each 30 second interval, (e.g., one at 30
seconds and one at 1 minute) is increasing in proportion to viewing time. As
the Examiner explained, more points are accumulated/added as the viewing
time increases. Ans. 22. At 30 seconds, there are two interest points, but at
1 minute, another two points are added to make a total of four interest points
added.
Fifth, the Appellant argues:
assuming the 30 second and the 1 minute times correspond to
the minimum time and the standard time recited in the claims,
Herz discloses an increase in the interest level if the time
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exceeds the minimum time and further increased if the time
exceeds the standard time . . .
App. Br. 16.
Hence, assuming that Herz increase the interest level
after the first time (i.e., minimum time) and further increases
the interest level after the second time (i.e., standard time), then
Herz fails to disclose the claim element of “wherein after a
minimum time has expired, said interest level is increased
. . . . [and] decreased . . . [with respect to a standard time].
Reply Br. 7.
The argument is unpersuasive. As the Examiner points out
once the time of viewing is more than 30 [ ] seconds or more
than a minute (e.g. expiration of a minimum time), Herz
discloses adding or increasing the interest points. Therefore,
because Herz teaches after a set time, points are increased in
response to monitored viewing time, then Herz is seen to teach
increasing in proportion to a time and after a minimum time has
expired. Thus, in an example used in light of Herz, after a
minimum time has expired (e.g. up to 30 seconds - interpreted
from Herz, col. 17 line 44) an interest level is updated +2 with
respect to a standard time (e.g. “more than 30 seconds” such as
31 seconds or more). If more than a minute were spent, then
the interest points in Herz are updated +2 again (Herz, col. 17,
lines 46-47) to teach increasing in proportion to time.
Ans. 22–23. Also, the claim language does not specify that the interest level
is increased “only” if the time is greater than a standard time. By
Appellant’s own admission (see above) Herz discloses an increase when the
time is greater than a standard time even if there is an increase after a
minimum time.
The remaining argument is that neither Barsness nor the combination
of Herz and Barsness disclose at least the element of “wherein after a
minimum time has expired, said interest level is increased in proportion to
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a time of the user’s action when the time is greater than a standard time and
decreased in proportion to the time of the user's action when the time is
less than the standard time.” App. Br. 21.
Herz was used by the Examiner to teach minimum and standard time
and that has been addressed above.
The Examiner relied on Barsness as disclosure of decreasing interest.
Ans. 5. In that regard, Barsness states
[a] transient viewership indicator 1106C indicates viewers who
tuned into the program for a first minimum threshold period of
time but then switched from the program before satisfying a
second minimum threshold. Accordingly, the transient
viewership indicator 1106C represents the “channel surfers”
who for lack of interest or other reasons do not stay committed
to a particular channel.
Barsness ¶ 70. Thus, Barsness does disclose two thresholds, the first being a
minimum threshold, and the second minimum threshold appearing to be a
division between those interested and those not interested in the program.
Also, at paragraph 44, Barsness states that an “interest level value is
decreased when people ‘surf’ to the channel but do not spend an adequate
amount of time tuned into the channel.” Read together, one of ordinary skill
in the art would interpret “adequate” time as the “second minimum
threshold” above the first minimum threshold time. Thus, we agree with the
Examiner that Barsness discloses a decreasing interest level when the time is
less than the standard time (i.e., Barsness’s “adequate time”). The
Examiner’s reasoning “if the time spent viewing in Barsness is less than an
adequate amount of time (e.g. a standard time), then Barsness can be seen to
teach decreasing in proportion to the time of the user’s action when the time
is less than the standard time” is underpinned logically. Ans. 24.
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Based on a preponderance of the evidence, the Examiner has made out
a prima facie case that it would have been obvious to one of ordinary kill in
the art, over the cited prior art, to estimate a user’s interest level in a file by
monitoring his/her actions on the file and then determining “after a
minimum time has expired [whether] the interest level is increased in
proportion to a time of the user’s actions when the time is greater than a
standard time” (claim 1). We have carefully reviewed all the arguments
presented challenging the rejection but find them unpersuasive as to error in
the rejection.
The rejection is sustained.

The rejection of claim 4 under 35 U.S.C. § 103(a) as being unpatentable
over Herz, Barsness, and Hosken.
The rejection of claim 10 under 35 U.S.C. § 103(a) as being unpatentable
over Herz, Barsness, and Miller.
The Appellant relies on the arguments made in challenging the
rejection of claim 1. App. Br. 23–24. Because those arguments were found
unpersuasive and there being no other arguments to address, these rejections
are sustained for the reasons discussed.

CONCLUSIONS
The rejection of claims 1–3, 5, 6, 8, 9 and 11–15 under 35 U.S.C.
§103(a) as being unpatentable over Herz and Barsness is sustained.
The rejection of claim 4 under 35 U.S.C. § 103(a) as being
unpatentable over Herz, Barsness, and Hosken is sustained.
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The rejection of claim 10 under 35 U.S.C. § 103(a) as being
unpatentable over Herz, Barsness, and Miller is sustained.

DECISION
The decision of the Examiner to reject claims 1–6 and 8–15 is
affirmed.

AFFIRMED

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