Ex Parte Vilcauskas et al

Patent Trial and Appeal Board

Jul 29, 2016

13295578 (P.T.A.B. Jul. 29, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
13/295,578 11/14/2011 Andrew J. Vilcauskas JR.
152 7590 07/29/2016
CHERNOFF, VILHAUER, MCCLUNG & STENZEL, LLP
601 SW Second Avenue
Suite 1600
PORTLAND, OR 97204-3157
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.
8096.0033 7194
EXAMINER
BEKERMAN, MICHAEL
ART UNIT PAPER NUMBER
3622
MAILDATE DELIVERY MODE
07/29/2016 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 ANDREW J. VILCAUSKAS, JR.,
ROBERT D. BLOODGOOD, III, and
MATTHEW G. MIDDLETON
Appeal2014-003957 1
Application 13/295,5782
Technology Center 3600
Before PHILIP J. HOFFMANN, KENNETH G. SCHOPPER, and
MATTHEWS. MEYERS, Administrative Patent Judges.
MEYERS, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellants appeal under 35 U.S.C. § 134(a) from the Examiner's
Final Rejection of claim 2. We have jurisdiction under 35 U.S.C. § 6(b ).
We AFFIRM.
1 Our Decision references Appellants' Appeal Brief ("Appeal Br.," filed
December 11 2013) and Reply Brief ("Reply Br.," filed February 5 2014),
and the Examiner's Answer ("Ans.," mailed January 10, 2014) and Final
Office Action ("Final Act.," mailed January 11, 2013).
2 Appellants identify Exit Exchange Corporation as the real party in interest
(Appeal Br. 2).
Appeal2014-003957
Application 13/295,578
CLAIMED fNVENTION
Appellants' claimed invention relates generally to a "method for
delivering displays to viewers browsing displays with platforms, for
exchanging traffic between platforms, and for accurately tracking focus time
on display content" (Spec. i-f 2).
Claim 2, reproduced below, is the only claim on appeal:
2. A method for post-session advertising, comprising:
(a) a computer system displaying a first display in a
first platform;
(b) a first triggering event received by said
computer system;
( c) in response to said first triggering event, opening
a second platform for displaying a second display in the
background of said first platform, said second platform
staying in said background until a second triggering event
occurs;
( d) providing timing data to a server from said
computer system providing an indication of the time
during which said second platform spends in a foreground
after said second triggering event occurs.
REJECTION3
Claim 2 is rejected under 35 U.S.C. § 103(a) as unpatentable over
Werkhoven (WO 99/59097 Al, pub. Nov. 18, 1999) and Blumenau
(US 6,108,637, iss. Aug. 22, 2000).
3 Appellants improperly indicate claim 1 as being rejected, however,
claim 1 was cancelled (see Appeal Br. 3).
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Application 13/295,578
Independent claim 2
ANALYSIS
We are not persuaded by Appellants' argument that the Examiner
erred in rejecting independent claim 2 under 35 U.S.C. § 103(a) because the
combination of Werkhoven and Blumenau fails to disclose or suggest
"providing timing data to a server from said computer system providing an
indication of the time during which said second platform spends in a
foreground after said second triggering event occurs," as recited by
limitation ( d) of independent claim 2 (see Appeal Br. 5---6; see also Reply
Br. 4--9). Instead, we agree with the Examiner that the combination of
Werkhoven and Blumenau discloses the argued limitation (see Final Act. 2-
3 (citing Werkhoven, p. 4, 11. 1---6, Fig. 1; Blumenau col. 7, 11. 4--30); see
also Ans. 2-3).
In this regard, we note that Werkhoven is directed to a system "to
provide for improved content delivery capabilities with interactive computer
systems and to enable the measurement of completion of that content being
displayed on a user's computer screen" (Werkhoven, p. 1, 11. 32-34).
Werkhoven discloses that its "preferred embodiment consists of a series of,
or individual interactive web sites which deliver 'popup' content to users
visiting the World Wide Web page" (id. at p. 2, 11. 30-31 ). More
particularly, Werkhoven discloses that its
system delivers a predetermined portion of the content within a
"popup" window which is provided for a predetermined time and
then removed from the user's screen. The time is preferably set
for each individual predetermined portion of the content and the
software then waits for a predetermined period of time before
running the next determined portion of content, even if a user
switches pages within a site. If a user leaves the site completely,
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Application 13/295,578
then the system is unable to run another portion of content until
the visitor returns to the site.
(Id. at p. 2, 1. 34-p. 3, 1. 1). Werkhoven further discloses
when a user opens a Web Page at a site, the poor [sic] information
for that Web Page is downloaded 2 in addition to a playlist of
popup advertisements.
Next, HTML code is instructed to open a background
window and the advertisement is loaded from its relevant HTML
source 4. Upon loading, the add [sic] is brought to the
foreground 5 and "played" 6. Subsequently, a time period lapses
7 and the method of the preferred embodiment iterates 8 back to
the step 3.
(Id. at p. 4, 11. 1---6 (emphasis added); see also id. at Fig. 1 ).
Werkhoven also discloses
[ t ]he user is able to switch windows or close the window
containing the determined portion of content, thereby skipping
that particular determined portion of content - although the next
determined portion of content in the sequence will still run. If
the window is not closed by the user before a given determined
portion of content has been completely displayed on the user's
screen, then a record of that completion can be added to a tally
recorded in a predetermined file.
(Id. at p. 3, 11. 11-15).
Blumenau is directed to a system for "monitoring the display and
observation at a content display site of content that is provided by a content
provider site over a network to the content display site" (Blumenau col. 1,
11. 6-9; see also id. at col. 11, 11. 2-7). Blumenau discloses that its system
can enable a determination as to whether (and for how long) the
content display is hidden by one of the other images, and, further,
whether the content display is fully hidden or partially hidden
(and for how long the content display is fully and partially
hidden, respectively). This information can be useful to, for
example, indicate the amount of time that the content display was
visible to an observer for observation, or to aid the content
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Application 13/295,578
provider in determining in which regions of a display screen his
content is most likely to be unobstructed.
(Id. at col. 7, 11. 14--23). We also note that Blumenau discloses
content is displayed in response to an instruction that is provided
from a source external to the computer system and the system for
monitoring (e.g., an instruction provided by a user of the
computer system), the beginning and end of a display of the
content can be ascertained so that monitoring of the display of
content by the computer system can begin at the beginning of the
content display and end at the end of the content display.
(Id. at col. 7, 11. 51-56).
Appellants also argue that Blumenau fails to disclose or suggest
"conveying timing data from a user's computer to a server" because
Blumenau "only discloses monitoring the content displayed on a user's
screen for the purpose of determining the amount of time that a window was
fully and/or partially hidden, and to monitor the location of a mouse pointer
to infer whether a user was paying attention to the content in the displayed
window" (Appeal Br. 6; see also Reply Br. 4--7). However, we agree with
the Examiner that Blumenau discloses providing timing information to a
server from a user's computer, as required by limitation ( d) of independent
claim 2 (see Ans. 2-3).
In this regard, Blumenau discloses that its system can send monitoring
information from the content display site, i.e., user's computer, to a content
provider site, i.e., server, over a network (see Blumenau col. 11, 11. 2-7) or
"to a remote site of the network that is different from the content provider
site" (id. at col. 8, 11. 50-55). Thus, we agree with the Examiner that
Blumenau discloses "providing timing data to a server from said computer
system providing an indication of the time during which said second
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Application 13/295,578
platform spends in a foreground after said second triggering event occurs,"
as recited by limitation (d) of independent claim 2.
Appellants further argue
the Examiner's stated rationale as to why one of ordinary skill in
the art would use the disclosure of Blumenau to modify the
system of Werkhoven is "to give the advertiser a better indication
of whether a user actually viewed the image." This seems to be
unnecessary given the teachings of Werkhoven which includes
code that forces content to the foreground such that no other
content is in front of it.
(Appeal Br. 6-7). However, the Examiner finds that "Blumenau discloses
monitoring if an image is displayed, how much is obscured by other
windows, and how long the image is displayed for and providing such
information to a server" (Final Act. 3 (citing Blumenau col. 7, 11. 4--30) ), and
concludes that "[i]t would have been obvious to one having ordinary skill in
the art at the time the invention was made to record such information in
order to give the advertiser a better indication of whether a user actually
viewed the image" (id.). We acknowledge, as Appellants point out, that
Werkhoven "includes code that forces content to the foreground such that no
other content is in front of it" (Appeal Br. 6; see also Reply Br. 6-8),
however, we agree with the Examiner that Blumenau's "timing data would
indeed give the advertiser a better indication of whether an image was
viewed" (Final Act. 3). Therefore, the Examiner provides a sufficiently
articulated rationale with rational underpinning to support a legal conclusion
of obviousness. See KSR Int'! Co. v. Teleflex Inc., 550 U.S. 398, 418 (2007)
(quoting In re Kahn, 441F.3d977, 988 (Fed. Cir. 2006)).
Further, Appellants direct the Board's attention to In re Stepan Co.,
660 F.3d 1341 (Fed. Cir. 2011) and In re Leithem, 661F.3d1316 (Fed. Cir.
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Application 13/295,578
2011) in advocating that "the Board would violate the Applicant's due
process rights under the Administrative Procedure Act" if we were to agree
with "new evidence or new rationales first provided in ... an Examiner's
Answer" (Reply Br. 5---6). Appellants' reliance on the holdings of those
cases, however, is misplaced. At issue in each of Stepan and Leithem was
whether the Board should have designated a new ground of rejection when it
relied on findings of fact not found by the Examiner.
Here, our decision does not rely on any new findings of the Board; but
instead, our decision relies on findings that were made by the Examiner and
expressed clearly in the Final Office Action and Examiner's Answer (see,
e.g., Final Act. 2-3; Ans. 3--4 ). And, although the Examiner provides
additional reasoning, in response to Appellants' argument, in the Answer to
support the Examiner's asserted combination, the Examiner indicates that
"while Examiner believes there to be no deficiencies in the provided
motivation, it is far from the only motivation" (Ans. 3). Thus, Appellants'
argument is not persuasive to show error in the Examiner's rejection.
In view of the foregoing, we sustain the Examiner's rejection of
independent claim 2 under 35 U.S.C. § 103(a).
DECISION
The Examiner's rejection of claim 2 under 35 U.S.C. § 103(a) is
affirmed.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(l )(iv).
AFFIRMED
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