Ex Parte Setos

Patent Trial and Appeal Board

Jul 1, 2016

12879440 (P.T.A.B. Jul. 1, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
12/879,440 09/10/2010
78537 7590 07/06/2016
Cantor Colburn LLP - Fox Entertainment Group
20 Church Street
22nd Floor
Hartford, CT 06103
FIRST NAMED INVENTOR
Andrew G. Setos
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.
FEG0924US 6980
EXAMINER
TAYLOR,JOSHUAD
ART UNIT PAPER NUMBER
2426
NOTIFICATION DATE DELIVERY MODE
07/06/2016 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):
usptopatentmail @cantorcolbum.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte ANDREW G. SETOS
Appeal2014-009338
Application 12/879,440
Technology Center 2400
Before JOSEPH L. DIXON, NATHAN A. ENGELS, and DANIEL J.
GALLIGAN, Administrative Patent Judges.
ENGELS, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellant appeals under 35 U.S.C. § 134(a) from a non-final rejection
of claims 1-15. We have jurisdiction under 35 U.S.C. § 6(b).
We affirm.
Appeal2014-009338
Application 12/879,440
ILLUSTRATIVE CLAIM
Claim 1, reproduced below, is illustrative of the claimed subject
matter:
1. A system for improving measurement of viewing patterns
by set tuners, comprising:
a set tuner configured with a channel reporting application,
the set tuner also configured with a wireless signal monitoring
device;
a separate hardware device connected to and receiving
data from said set tuner; and
at least one wireless peripheral device,
wherein the set tuner also includes an uploaded
supplemental application configured to report a hardware state of
said separate hardware device, said hardware state determined by
a peripheral device wireless signal received by the wireless
monitoring device, to supplement data reported by the channel
reporting application and thereby improve upon the
measurement of viewing patterns by the set tuner that would
otherwise be limited to reporting of channel state information by
the channel reporting application.
THE EXAMINER'S REJECTION
Claims 1-15 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable in view of the combination of Yuen et al. (US 5,532,732; July
2, 1996) and Mears et al. (US 2005/0144632 Al; June 30, 2005).
ANALYSIS
Appellant contends the Examiner erred in concluding claims 1-15
would have been obvious in view of the combination of Yuen and Mears.
Specifically, addressing claim 1, Appellant argues Yuen discloses an
audience-monitor device and a cable box as two distinct pieces of hardware,
in contrast to the claimed set tuner that includes a channel-reporting
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Appeal2014-009338
Application 12/879,440
application. App. Br. 6. Further, "because [Yuen's audience-monitor
device] is a dedicated piece of additional hardware, there is no supplemental
upload application for monitoring a hardware state" and "no reporting of the
hardware state of non-set top devices (as measured by the wireless
monitoring hardware of the set top box) as a supplement along with
reporting of standard set tuner channel data." App. Br. 6-7. Appellant also
argues that while Mears discloses a set top box that includes a television
meter, Mears discloses hardware and "[t]here is still no teaching in the cited
art for an upload of supplemental software (supplemental uploaded
application) for monitoring a hardware state." App. Br. 7.
We find Appellant's arguments unpersuasive as Appellant attacks the
cited references individually without substantively addressing what a person
of ordinary skill would have understood from the references' combined
teachings. See In re Keller, 642 F.2d 413, 426 (CCPA 1981) ("one cannot
show non-obviousness by attacking references individually where ... the
rejections are based on combinations of references"). The test for
obviousness "is what the combined teachings of the references would have
suggested to those of ordinary skill in the art." Id.; accord KSR Int 'l Co. v.
TeleFlex Inc., 550 U.S. 398, 418 (S. Ct. 2007) (obviousness analysis does
not require precise teachings of the claimed subject; the analysis should
account for the inferences and creative steps that a person of ordinary skill in
the art would employ). We agree with the Examiner that the system of claim
1, including a set tuner configured with a channel-reporting application and
an uploaded supplemental application configured to report a hardware state
as claimed, would have been obvious in view of combination ofYuen's
audience-monitor device that includes an infrared detector "to sense the on
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Appeal2014-009338
Application 12/879,440
and off status of the television" (Yuen col. 5, 11. 1-6) and Mears's
disclosures of known set tuners that included channel-reporting applications
and could be adapted to determine "the operational status of the television,
i.e., whether the television is off or on" (Mears i-f 6). See Ans. 3-5. Further,
we agree with the Examiner that the broadest reasonable interpretation of the
claimed set tuner having "an uploaded supplemental application configured
to report a hardware state of said separate hardware device" includes the
references' teachings of hardware capable of performing that function (see
Yuen col. 5, 11. 1-17; Mears i-f 6), particularly given the suggestion that
hardware "may be adapted to" perform such functions (see, e.g., Mears i-f 28
("The base metering device 20 ... may be adapted to perform one or more
of a variety of well known television metering methods.")). Accordingly,
we are unpersuaded of error in the Examiner's rejection of claim 1.
Appellant additionally states that Yuen and Mears fail to teach
limitations of dependent claims 5, 6, 7, 9, 10, 11, and 15, but Appellant
simply lists those claims along with naked assertions that each claim's
limitations are not met. App. Br. 7-8; Reply Br. 2-3. Because Appellant's
contentions do not address substantively the Examiner's findings and
conclusions and point out with particularity the Examiner's purported error,
we find Appellant's arguments unpersuasive. See 37 C.F.R. § 41.37
(c)(l)(iv); In re Lovin, 652 F.3d 1349, 1357 (Fed. Cir. 2011) (explaining that
an appellant must advance substantive arguments beyond mere recitation of
the claim elements and naked assertions that the corresponding elements
were not found in the prior art). Accordingly, we are unpersuaded of error
in the Examiner's rejections of claims 5, 6, 7, 9, 10, 11, and 15.
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Appeal2014-009338
Application 12/879,440
Having considered each of Appellant's arguments in view of the
Examiner's rejections and the evidence of record, we are unpersuaded of
error and agree with the Examiner's findings and conclusions. We adopt as
our own the Examiner's findings, conclusions, and reasons and sustain the
rejections of claims 1, 5, 6, 7, 9, 10, 11, and 15, as well as claims 2--4, 8, and
12-14, which Appellant does not address separately.
DECISION
We affirm the Examiner's rejection of claims 1-15.
No time period for taking any subsequent action in connection with
this appeal may be extended. 37 C.F.R. § 1.136(a)(l )(iv).
AFFIRMED
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