Ex Parte LEWIS et al

Patent Trial and Appeal BoardSep 25, 2018

12361423 (P.T.A.B. Sep. 25, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE FIRST NAMED INVENTOR 12/361,423 01/28/2009 12371 7590 09/27/2018 Muncy, Geissler, Olds & Lowe, P.C./QUALCOMM 4000 Legato Road, Suite 310 Fairfax, VA 22033 Robert C. LEWIS 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 ATTORNEY DOCKET NO. CONFIRMATION NO. QC080157 8240 EXAMINER BIBBEE, CHA YCE R ART UNIT PAPER NUMBER 2624 NOTIFICATION DATE DELIVERY MODE 09/27/2018 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): meo.docket@mg-ip.com meo@mg-ip.com ocpat_uspto@qualcomm.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte ROBERT C. LEWIS and GIRIDHAR D. MANDY AM Appeal 2018-000620 Application 12/361,423 1 Technology Center 2600 Before CARLA M. KRIVAK, HUNG H. BUI, and JON M. JURGOV AN, Administrative Patent Judges. JURGOV AN, Administrative Patent Judge. DECISION ON APPEAL Appellants seek review under 35 U.S.C. Â§ 134(a) from a Final Rejection of claims 1-9, 11-23, and 25-27, which are all the claims pending in the application. We have jurisdiction under 35 U.S.C. Â§ 6(b). We affirm. 2 1 Appellants identify QUALCOMM Incorporated as the real party in interest. (App. Br. 3.) 2 Our Decision refers to the Specification ("Spec.") filed January 28, 2009, the Final Office Action ("Final Act.") mailed June 30, 2015, the Appeal Brief ("App. Br.") filed June 27, 2016, the Examiner's Answer ("Ans.") mailed September 22, 2017, and the Reply Brief ("Reply Br.") filed October 23, 2017. Appeal2018-000620 Application 12/361,423 CLAIMED INVENTION The claims are directed to a method, apparatus, and computer- readable medium "for distributing advertisement content" by "tracking mobile communication devices in proximity of a dynamic advertising venue," determining "a viewing population ... , dynamically characterized for a predicted receptiveness to one of a plurality of advertising campaigns," and optimizing royalty revenue by "select[ing] an advertisement for displaying on the dynamic advertisement display ... based on the characterization of the subset of users." (Spec. ,r,r 8-11, 13.) Claims 1 and 12-15 are independent. Claim 1, reproduced below, is illustrative of the claimed subject matter: 1. A method for distributing advertisement content, compnsmg: characterizing a plurality of users of a plurality of mobile communication devices by associating each of the plurality of users with at least one of a plurality of categories; sensing a subset of two or more of the plurality of users as a viewing population being proximate to a dynamic advertisement display based upon a location value of the subset of users' corresponding mobile communication devices; determining a set of advertisements where each advertisement is targeted to at least one of the plurality of categories associated with the users in the subset in accordance with a category-specific royalty rate; determining, for each of the set of advertisements, royalty revenue to be generated in response to displaying the advertisement on the dynamic advertisement display based on (i) a total number of users among the viewing population for the advertisement's targeted category, and (ii) the category-specific royalty rate for the advertisement; and 2 Appeal2018-000620 Application 12/361,423 selecting one of the set of advertisements for displaying on the dynamic advertisement display that is based on the determined royalty revenues. (App. Br. 23-28 (Claims App'x).) REJECTIONS & REFERENCES (1) Claims 1-3, 6-9, 11-17, 20-23, and 25-27 stand rejected under 35 U.S.C. Â§ I03(a) as being unpatentable over Boyd (US 6,484,148 Bl, issued Nov. 19, 2002) and Zigmond et al. (US 2008/0249834 Al, published Oct. 9, 2008, "Zigmond"). (Final Act. 5-9.) (2) Claims 4, 5, 18, and 19 stand rejected under 35 U.S.C. Â§ I03(a) as being unpatentable over Boyd, Zigmond, and Simmons et al. (US 2006/0271415 Al, published Nov. 30, 2006, "Simmons"). (Final Act. 9- 10.) ANALYSIS With respect to independent claim 1, Appellants contend Zigmond does not teach or suggest a "category-specific royalty rate" for an advertisement, and "makes no attempt to determine 'a total number of users among the viewing population for the advertisement's targeted category' for the purpose of determining 'royalty revenue' based on a 'category-specific royalty rate,"' as claimed. (App. Br. 9, 16-17.) Particularly, Appellants argue although "target demographic metadata may factor into an auction that determines [Zigmond's] CPM [cost per one thousand ad impressions] for an advertisement," Zigmond's "CPM is then simply multiplied by the impression count which means that the CPM does not actually establish a royalty rate that is 'category-specific."' (App. Br. 9; see also Reply Br. 3- 3 Appeal2018-000620 Application 12/361,423 4.) 3 Appellants also argue "Zigmond does not disclose or suggest that the advertisement revenue would be impacted specifically by 'a total number of users among the viewing population/or the advertisement's targeted category,"' as claimed; rather, "the impression counts referred to [in] Zigmond are intended to reflect the total viewing population, as opposed to the total viewing population for a particular 'targeted category' of users." (App. Br. 9, 12; see also Reply Br. 2-3.) We do not find Appellants' arguments persuasive. We find the Examiner has provided a comprehensive response to Appellants' arguments supported by a preponderance of evidence. (Ans. 8-11.) As such, we adopt the Examiner's findings and explanations provided therein. (Id.) At the outset, we note claim terms are given their broadest reasonable interpretation consistent with the Specification. In re Am. A cad. of Sci. Tech Ctr., 3 6 7 F.3d 1359, 1364 (Fed. Cir. 2004). Under the broadest reasonable interpretation, claim terms are given their ordinary and customary meaning, as would be understood by one of ordinary skill in the art in the context of the entire disclosure. In re Translogic Tech., Inc., 504 F.3d 1249, 1257 (Fed. Cir. 2007). At the same time, care must be exercised not to import limitations into the claims or to read a particular embodiment appearing in the written description into the claim if the claim language is broader than the embodiment. In re Van Geuns, 988 F.2d 1181, 1184 (Fed. Cir. 1993) (citing In re Zietz, 893 F.2d 319,321 (Fed. Cir. 1989)). Appellants' claim 1 recites, inter alia, a "category-specific royalty rate" for an advertisement "targeted to at least one of the plurality of 3 We count the last four pages of the Reply Brief ( which are not numbered) continuing from the only numbered page (page 1 ). 4 Appeal2018-000620 Application 12/361,423 categories associated with the users in the subset in accordance with [the] category-specific royalty rate." (App. Br. 23 (Claims App'x).) Appellants' Specification does not provide an explicit and exclusive definition of the claimed term "category-specific royalty rate." Rather, Appellants' Specification provides non-limiting examples of such "category-specific royalty rates" for ads, as follows: Alpha Advertising Campaign can have a high royalty rate per applicable person who belongs to a narrow cross section cf a population, such as physicians who occasionally meet at a convention center near the dynamic advertising venue. By contrast, the Beta Advertising Campaign can have a low royalty rate per applicable person who belongs to a large cross section of a population, such as those who drink adult beverages . ... [T]he marketplace platform 79 at 96 specifies which advertising campaign to display, or provides sufficient guidance to the dynamic advertising venue 78 can make these determinations locally. Thus, the specified advertisement is presented as depicted at 97. This process is iterated as depicted at block 98 to adjust for changes in the viewing population as well as changes in the applicable royalty rates. An example of the latter is that certain advertisement campaigns can have a time window .... For example, an advertisement event is triggered when twenty users are detected as having a classification as professionals in a certain medical specialty, due to the proximity of a convention or hospital, for which a pharmaceutical or medical device manufacturer is willing to pay a premium advertising rate per capita. As another example, a sporting event then concludes and a large influx of sports fans leave. The sheer number of fans changes the optimum revenue generating advertisement to one with a lower premium per capita, but an overall larger value .... In FIG. 12, a methodology 940 for interceptor micro- targeting advertisement begins by utilizing a location-informed behavioral profile in order to predict a transaction in block 942, 5 Appeal2018-000620 Application 12/361,423 according to one aspect. An advertisement is requested or located in the advertisement cache as an interceptor advertisement opportunity when the predicted transaction is at a competitor business. The advertisement billing rate can be increased, for example, (f the advertiser chooses to send advertisements to those [users] going to competitors. (Spec. ,r,r 47, 48, 56, 108 (emphases added).) Thus, Appellants' Specification broadly describes a category-specific royalty rate for an advertisement is a price the advertiser is willing to pay (to an ad presenting entity) to have the ad presented to the public. (See Spec. ,r,r 47--48, 56, 108.) As explained in Appellants' Specification, an ad's royalty rate is category- specific because the royalty rate may depend on the ad's characteristics (e.g., the ad's targeted demographics, or targeted products such as medical devices, beverages, or sports' products). (See Spec. ,r,r 47--48, 56, 108.) We, therefore, agree with the Examiner that "the price (CPM [in Zigmond]) that an advertiser is willing to pay for each [ad] impression" is commensurate with the broad description of a category-specific royalty rate in Appellants' Specification. ( Ans. 10 ( citing Zigmond ,r 66); see also Final Act. 6 (citing Zigmond Figs. 5 and 8 (illustrating the use of CPM)).) Zigmond explains that television networks monetize advertisements based on "advertiser bids" indicating "the price an advertiser has offered to pay for each [ad] impression" (i.e., each ad's presentation to consumers). (See Zigmond ,r,r 65---66 (emphasis added).) Zigmond further explains that the advertiser's ad costs depend on "audience composition expected to be listening or watching during the purchased airtime" in a ''particular television network," "niche programming" or "specialty channels," or a particular "television show" such as "a sporting event." (See Zigmond ,r,r 4, 42, 50, 60, 74 (emphases added).) Thus, we agree with the Examiner that 6 Appeal2018-000620 Application 12/361,423 Zigmond teaches a "category-specific royalty rate" for an advertisement "targeted to at least one of the plurality of categories associated with the users in the subset in accordance with [the] category-specific royalty rate," as recited in claim 1. We are also not persuaded by Appellants' argument that Zigmond does not determine "royalty revenue to be generated in response to displaying the advertisement on the dynamic advertisement display based on (i) a total number of users among the viewing population for the advertisement's targeted category," as claimed. (App. Br. 9, 11-16.) Appellants' support for this argument relies upon Appellants' contention that Zigmond's "impression counts ... are intended to reflect the total viewing population, as opposed to the total viewing population for a particular 'targeted category' of users," as claimed. (App. Br. 9.) Appellants assert "Zigmond does not appear to discriminate between advertisement impressions by users in different user categories for revenue calculation"; rather, Zigmond counts the entire viewing population of 13 million subscribers in its revenue calculation. (App. Br. 12-13.) We are not persuaded by Appellants' arguments because Zigmond does discriminate between "users among the viewing population for the advertisement's targeted category" as recited in claim 1. (Ans. 9-10; Final Act. 3.) Particularly, Zigmond discloses a television viewing population of 13 million includes viewers associated with a plurality of targeted categories, the categories designating programs of various ratings or popularity levels. (See Zigmond ,r,r 35-37, 39, 43, 46-47, 49.) Zigmond's categories include, for example, "less popular programs (those with lower ratings)," "niche programming, e.g., programming with relatively small 7 Appeal2018-000620 Application 12/361,423 viewership numbers," "specialty channels that serve smaller audiences," "more popular programs," and programs with distinct ratings of 0.01 %, 0.03%, 0.1 %, and 1 %. (See Zigmond ,r,r 35-37, 42, 47, 50, Figs. 4---6 and 8; Ans. 9-11; Final Act. 3.) Zigmond also determines advertisements (e.g., an ad for extreme sporting equipment) relevant to particular program categories (e.g., a sports program). (Ans. 9 (citing Zigmond ,r,r 60, 74).) Thus, Zigmond determines advertisements targeted to at least one of the plurality of categories associated with the users, as recited in claim 1. (Ans. 9-10; Final Act. 3, 6.) Zigmond also determines royalty revenue to be generated in response to displaying an advertisement based on (i) a total number of users among the viewing population for the advertisement's targeted category, and (ii) the category-specific royalty rate for the advertisement, as claimed. (Ans. 9- 10.) Zigmond's advertising system "determine[s] the prices for the advertisements" ( claimed royalty revenue to be earned by an ad presenting entity) from "the estimate number of impressions" ( claimed total number of users among the viewing population for the advertisement's targeted category) "multiplied by the price an advertiser has offered to pay for each impression" ( claimed category-specific royalty rate for the advertisement). (See Zigmond ,r 66 (emphasis added); see also Ans. 9-10.) As the Examiner explains, Zigmond's "estimate number of impressions" (Zigmond ,r 66) teaches the claimed "total number of users among the viewing population for the advertisement's targeted category" because Zigmond's "estimate number of impressions" estimates with high certainty the size of a subset ( of the total TV viewing population) that will view a certain TV channel or program. (Ans. 10-11; see Zigmond ,r,r 34, 42 ("quantify the desired level of certainty 8 Appeal2018-000620 Application 12/361,423 for a metric, e.g., an impression count, and adjust the count such that the advertiser only pays for high-certainty impressions"), 44--45 ("estimate[] the largest number of viewers such that there is a level of certainty, e.g., 90%, that the estimate is below the true value" so that "advertisers may only be billed for the number of impressions that the metric estimator 700 determines with 90% certainty is less than, the number of actual impressions").) Therefore, we agree with the Examiner that Zigmond determines royalty revenues to be generated in response to displaying advertisements as recited in claim 1. (Ans. 9--11; Final Act. 3, 6.) Zigmond further teaches selecting one of the set of advertisements for displaying on an advertisement display, based on the determined royalty revenues, as claimed. (Ans. 9--1 O; Final Act. 3, 6.) Particularly, Zigmond's advertiser and ad presenting entity (e.g., a TV network) select advertisements for display based on the determined price (advertiser's cost to advertise) indicating the TV network's royalty revenue. (See Zigmond ,r,r 27, 38-39, 42, 52, 65---66.) Appellants further assert "Zigmond falls short of an implementation whereby 'a subset of two or more of the plurality of users as a viewing population being proximate to a dynamic advertisement display based upon a location value of the subset of users' corresponding mobile communication devices' are actually sensed." (Reply Br. 3; App. Br. 15.) We remain unpersuaded by Appellants' argument, which addresses the references separately rather than the combination of teachings proposed by the Examiner. (Final Act. 5---6.) Particularly, Boyd, not Zigmond as Appellants assert (see Reply Br. 3), was cited for teaching "sensing a subset of two or more of the plurality of users as a viewing population being proximate to a 9 Appeal2018-000620 Application 12/361,423 dynamic advertisement display based upon a location value of the subset of users' corresponding mobile communication devices" recited in claim 1. (Final Act. 5 (citing Boyd col. 7, 11. 25-57, col. 9, 11. 43---63).) The Examiner has also articulated sufficient reasoning for using Zigmond's accurate method of determining ad revenue in Boyd's targeted advertising system "to provide accurate and timely reporting for advertisers to improve the measurability of [advertisers'] advertising" costs. (Final Act. 6 ( citing Zigmond ,r 49).) Appellants' argument that "the claim language of 'viewing population' is being interpreted differently [in Examiner's rejection] with respect to Boyd and Zigmond to such an extent that Boyd and Zigmond are not analogous art," is also unpersuasive. (Reply Br. 5; see also App. Br. 9, 18.) Particularly, Appellants argue Boyd's proximity-based, "small-sized, local, individually identified viewing population of a billboard" is non- analogous to, and fundamentally different from Zigmond's "comparably huge television broadcast audience distributed among millions of set-top devices." (App. Br. 9, 17-18, 20; see also Reply Br. 4--5.) "Whether a reference in the prior art is 'analogous' is a fact question." In re Clay, 966 F.2d 656, 658 (Fed. Cir. 1992) (citing Panduit Corp. v. Dennison Mfg. Co., 810 F.2d 1561, 1568 n.9 (Fed. Cir. 1987)). Two criteria have evolved for determining whether prior art is analogous: (1) whether the art is from the same field of endeavor, regardless of the problem addressed, and (2) if the reference is not within the field of the inventor's endeavor, whether the reference still is reasonably pertinent to the particular problem with which the inventor is involved. 10 Appeal2018-000620 Application 12/361,423 Id. at 658-59 (citing In re Deminski, 796 F.2d 436,442 (Fed. Cir. 1986); In re Wood, 599 F.2d 1032, 1036 (CCPA 1979)). "A reference is reasonably pertinent if ... it is one which, because of the matter with which it deals, logically would have commended itself to an inventor's attention in considering his problem." Id. at 659. At the outset, we note Boyd's advertising device is not limited to a roadside billboard, as Appellants assert. (See App. Br. 15, 17, 19.) Rather, Boyd's advertising device-similar to Appellants' claimed dynamic advertisement display-----encompasses a variety of audio and visual devices. (See Boyd col. 4, 11. 55-58 ("The term 'advertising device' is intended to include devices which display/communicate ads (e.g., visual, audio, visual/audio, holographic 3D, animation, static image(s), etc.) to the public"), col. 11, 11. 35-37; Spec. ,r,r 55, 69 (a dynamic advertisement display may be a "mobile advertisement platform" or a "billboard, television, computer workstation, waiting room display, public conveyance signage, etc."), 106.) As the Examiner further recognizes, Boyd and Zigmond are directed to ad selection for targeting relevant viewing populations that include "similar categories of viewers" and "similar groups of people (gender and age)." (Ans. 11 (citing Boyd col. 9, 11. 43-63, Zigmond ,r 60).) Appellants' claimed invention is similarly concerned with ad selection for targeting relevant viewing populations, as evidenced by Appellants' Specification. (See Spec. ,r 8 (describing methods and devices for "tracking mobile communication devices in proximity of a dynamic advertising venue" and "selecting an advertisement targeted for the current viewing population" to optimize royalty revenue), 32.) Therefore, we agree with the Examiner "the viewing populations [of Boyd and Zigmond] are ... 11 Appeal2018-000620 Application 12/361,423 similar and thus analogous," and Boyd and Zigmond would have logically commended themselves to the problem of selecting relevant ads for targeted audiences addressed in the present application. (Ans. 11.) For the above reasons, we sustain the Examiner's rejection of independent claim 1 and the Examiner's rejection of independent claims 12-15, argued together (see App. Br. 11, 21; Reply Br. 3). No separate arguments are presented for dependent claims 2, 3, 6-9, 11, 16, 17, 20-23, and 25-27. (App. Br. 21.) Accordingly, for the reasons stated with respect to independent claims 1 and 12-15, we sustain the rejection of these dependent claims. See 37 C.F.R. Â§ 4I.37(c)(l)(iv). With respect to dependent claims 4, 5, 18, and 19, Appellants provide substantially the same arguments as for claims 1 and 12-15, and additionally argue that Simmons does not cure the alleged deficiencies of Boyd and Zigmond. (App. Br. 21-22.) Because we find Boyd and Zigmond are not deficient, Simmons is not needed to cover any deficiency. Therefore, we sustain the rejection of dependent claims 4, 5, 18, and 19 for the reasons stated with respect to the independent claims. DECISION We affirm the Examiner's decision rejecting claims 1-9, 11-23, and 25-27 under 35 U.S.C. Â§ 103(a). No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. Â§ 1.136(a)(l )(iv). AFFIRMED 12