Ex Parte Rashkovskiy et al

Patent Trial and Appeal BoardSep 24, 2012

10848931 (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. 10/848,931 05/19/2004 Oleg B. Rashkovskiy BKA.0002C1US 5716 21906 7590 09/24/2012 TROP, PRUNER & HU, P.C. 1616 S. VOSS ROAD, SUITE 750 HOUSTON, TX 77057-2631 EXAMINER SALTARELLI, DOMINIC D ART UNIT PAPER NUMBER 2421 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 OLEG B. RASHKOVSKIY and NOAM A. SHENDAR ___________________ Appeal 2010-0041061 Application 10/848,931 Technology Center 2400 ____________________ Before JEAN R. HOMERE, THU A. DANG, and ANDREW J. DILLON, Administrative Patent Judges. HOMERE, Administrative Patent Judge. DECISION ON APPEAL 1 The real party in interest is BlackArrow, Inc. (App. Br. 3.) This appeal is related to a prior appeal 2010-5055 (09/561,443) previously decided by another panel on February 13, 2012. Appeal 2010-004106 Application 10/848,931 2 I. STATEMENT OF THE CASE Appellants appeal under 35 U.S.C. § 134(a) from the Examiner’s final rejection of claims 1-4, 6-19, and 31-47. Claims 5 and 20-30 have been canceled. (App. Br. 5.) We have jurisdiction under 35 U.S.C. § 6(b). We affirm. Appellants’ Invention Appellants invented a broadband distribution system having a shell interface (22) that interrupts the presentation of a cached content, analyzes it to thereby determine an appropriate location therein to insert a pre-cached advertisement at a favorable time. (Fig. 1, Spec. 7, l. 4- Spec. 8, l. 10.) Illustrative Claim Independent claim 1 further illustrates the invention. It reads as follows: 1. A method comprising: receiving content and an advertisement; storing said content, including an interruptible content portion, and an advertisement in a cache coupled to said receiver; analyzing the content to identify a location to insert the advertisement within the content and, based on said analysis, finding a place to insert said advertisement in said portion while said portion is still stored in said cache; Appeal 2010-004106 Application 10/848,931 3 inserting said advertisement in said portion; and outputting for display said portion with said inserted advertisement. Prior Art Relied Upon Zigmond US 6,698,020 B1 Feb. 24, 2004 Arsenault US 6,971,119 B1 Nov. 29, 2005 Armstrong US 7,017,173 B1 Mar. 21, 2006 Rejections on Appeal The Examiner rejects the claims on appeal as follows: 1. Claims 1-3, 6, 7, 10-13, 15, 16, 19, 31, 32, 37, 38, 40, 42, 43, and 46 stand rejected under 35 U.S.C. § 102(e) as being anticipated by Arsenault. 2. Claims 4, 8, 9, 14, 17, 18, 33-36, 39, and 41 stand rejected under 35 U.S.C. § 103 (a) as being unpatentable over the combination of Arsenault and Zigmond. 3. Claims 44, 45, and 47 stand rejected under 35 U.S.C. § 103 (a) as being unpatentable over the combination of Arsenault and Armstrong. ANALYSIS We consider Appellants’ arguments seriatim as they are presented in the principal Brief, pages 10-11 and the Reply Brief 1-2. Appeal 2010-004106 Application 10/848,931 4 Representative Claim 1 Dispositive Issue: Have Appellants shown that the Examiner erred in finding that Arsenault describes analyzing an interruptible content portion in a cache to determine where to insert an advertisement in the portion while it is still stored in the cache, as recited in independent claim 1? Appellants argue that Arsenault does not describe analyzing the content in a cache to determine where to insert an advertisement therein, as recited in independent claim 1. According to Appellants, while Arsenault discloses ordering packets of content into discrete units to thereby insert advertisements between the discrete units, the content are not analyzed to determine locations therein to insert the advertisements. (App. Br. 10-11). Further, Appellants argue that Arsenault’s disclosure of periodically inserting the advertisements between movie segments of equal length confirms their allegation that the content of the movie segments are not analyzed before advertisements are inserted therebetween. (Reply Br. 1-2.) In response, the Examiner finds that because the segments of a movie as a whole represent contents thereof, and the organization of the segments in an appropriate order requires an analysis thereof, Arsenault’s disclosure of inserting advertisements between movie segments in a cache describes the disputed limitations, as broadly claimed. (Ans. 13-15.) On the record before us we find no error in the Examiner’s rejection of independent claim 1, which recites, inter alia, analyzing the content portion in a cache to identify a location therein to insert an advertisement. Appeal 2010-004106 Application 10/848,931 5 We note at the outset that, as set forth above, both the Examiner and Appellants agree that Arsenault discloses inserting an advertisement between the content/movie segments. However, Appellants do not agree with the Examiner that the cited disclosure describes the disputed limitations. We agree with the Examiner. In particular, we find that Arsenault discloses breaking a movie content into a plurality of segments interspersed by an advertisement segment in such a way to playback the advertisement at the end of each movie segment. Depending on the content of the advertisement, the movie segments are ordered accordingly. (Col. 17, l. 17- col. 18, l. 19). While Arsenault’s disclosure appears to be silent on the relative lengths of each of the movie segments, Fig. 8 appears to depict a plurality of segments of different lengths, e.g, in playback option 164, segment 170A<170B=170C< 170D, in playback option 166, segment 170A =170B < 170C, in playback option 168, segment 170D>170A=170C >170B). Therefore, Appellants’ argument that the movie segments are of equal lengths is not supported by the evidence before us nor is it supported by the controlling case law.2 Notwithstanding Arsenault’s silence on the assignment of movie segment lengths, we find that Arsenault’s disclosure of 2 See In re Wright, 569 F.2d 1124, 1127 (CCPA 1977) (“Absent any written description in the specification of quantitative values, arguments based on measurement of a drawing are of little value” (citation omitted)). See also In re Nash, 230 F.2d 428, 431 (CCPA 1956) (“[I]t is well settled that the drawings of patent applications are not necessarily scale or working drawings. . . .”); In re Olson, 212 F.2d 590, 592 (CCPA 1954) (“Ordinarily drawings which accompany an application for a patent are merely Appeal 2010-004106 Application 10/848,931 6 the CPU organizing the movie segments in appropriate order based on the intended use of the advertising segments (col. 18, ll. 1-5) describes that the movie segments are subject to some kind of analysis depending on the intended use of the advertising. Furthermore, we find that common sense dictates that the movie content has to be analyzed before it can be optimally broken up into the segments, and subsequently interspersed by the advertisements. That is, randomly or periodically breaking up the movie content without a prior analysis could compromise the effectiveness of the movie playback (e.g. dialogs could be inadvertently broken in mid-sentence, etc.) We are therefore satisfied that the cited disclosures of Arsenault adequately describe the disputed limitations. It follows that Appellants have not shown the Examiner erred in finding that Arsenault anticipates claim 1. Because Appellants argue the patentability of claims 1-4, 6-19, and 31-47 as a single group, claims 2-4, 6-19, and 31-47 fall for the same reasons set forth above in our discussion of claim 1. See 37 C.F.R. § 41.37(c)(1)(vii). illustrative of the principles embodied in the alleged invention claimed therein and do not define the precise proportions of elements relied upon to endow the claims with patentability” (citation omitted)). See also MPEP § 2125. Appeal 2010-004106 Application 10/848,931 7 IV. DECISION We affirm the Examiner’s rejections of claims 1-4, 6-19, and 31-47. 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 pgc