Google LLC

Patent Trials and Appeals BoardJun 16, 2021

2020002022 (P.T.A.B. Jun. 16, 2021)

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. 16/027,023 07/03/2018 Jeffrey Arthur Kardatzke 0715150.127-US4 1082 104433 7590 06/16/2021 Byrne Poh LLP/Google LLC 11 Broadway Ste 760 New York, NY 10004 EXAMINER ALCON, FERNANDO ART UNIT PAPER NUMBER 2425 NOTIFICATION DATE DELIVERY MODE 06/16/2021 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): info@byrnepoh.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte JEFFREY ARTHUR KARDATZKE ____________ Appeal 2020-002022 Application 16/027,023 Technology Center 2400 ____________ Before JOHN A. JEFFERY, BETH Z. SHAW, and JULIET MITCHELL DIRBA, Administrative Patent Judges. JEFFERY, Administrative Patent Judge. DECISION ON APPEAL Under 35 U.S.C. § 134(a), Appellant1 appeals from the Examiner’s decision to reject claims 1–20. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. 1 We use the word “Appellant” to refer to “applicant” as defined in 37 C.F.R. § 1.42. Appellant identifies the real party in interest as Google LLC. Appeal Br. 3. Appeal 2020-002022 Application 16/027,023 2 STATEMENT OF THE CASE Appellant’s invention provides media guidance with media content from alternate sources. For each media content item that is determined to be available for playback from an alternate source, an alternate source playback indicator is presented along with the media content listing and, when selected by a user, can direct a media guidance application to access the media content item associated with the alternate source playback indicator. See Spec. ¶¶ 2, 44; Figs. 1–2. Claim 1 is illustrative: 1. A method for providing media guidance with a plurality of media sources, the method comprising: receiving, using a hardware processor, a plurality of media content listings for presenting to a user that are each associated with one of a plurality of media content sources; determining, without user intervention, for a media content listing of the plurality of media content listings, an availability of a media content item corresponding to the media content listing from one or more alternate sources of media content, wherein each of the one or more alternate sources is different than the plurality of media content sources; causing the plurality of media content listings to be presented to the user; concurrently with causing the plurality of media content listings to be presented, causing an alternate source indicator to be presented to the user within the media content listing in response to determining that the corresponding media content item is available from the one or more alternate sources of media content; and Appeal 2020-002022 Application 16/027,023 3 causing the corresponding media content item to be presented in response to receiving a selection of the alternate source indicator. THE REJECTIONS The Examiner rejected claims 1–3, 6, 8–10, 13, 15–17, and 19 under 35 U.S.C. § 102(e) as anticipated by Merzon (US 2013/0114940 Al; published May 9, 2013). Final Act. 3–4.2 The Examiner rejected claims 4, 5, 11, 12, and 18 under 35 U.S.C. § 103(a) as unpatentable over Merzon and Makhlouf (US 2011/0126234 Al; published May 26, 2011). Final Act. 5–7. The Examiner rejected claims 7, 14, and 20 under 35 U.S.C. § 103(a) as unpatentable over Merzon and Iki (US 7,240,356 B2; issued July 3, 2007). Final Act. 7–8. THE ANTICIPATION REJECTION Regarding independent claim 1, the Examiner finds that Merzon discloses every recited element including, among other things, concurrently with causing plural media content listings to be presented, causing an alternate source indicator, namely designator 706 in Figure 7, to be presented to the user within the media content listing responsive to determining that the corresponding media content item is available from one 2 Throughout this opinion, we refer to (1) the Final Rejection mailed March 25, 2019 (“Final Act.”); (2) the Appeal Brief filed September 19, 2019 (“Appeal Br.”); and (3) the Examiner’s Answer mailed October 18, 2019 (“Ans.”). Appeal 2020-002022 Application 16/027,023 4 or more alternate sources of media content, namely non-linear content sources. See Final Act. 3–4; Ans. 4–8. Appellant argues that Merzon’s designator 706 is not an alternate source indicator, let alone presented responsive to determining that corresponding media content item is available from one or more alternate sources as claimed. Appeal Br. 7–9. According to Appellant, not only is Merzon’s designator displayed regardless of whether content is available from multiple sources, the designator merely indicates that content may be available for recording at a later date—not a media item that is available from one or more alternate sources. Appeal Br. 7–8. ISSUE Under § 102, has the Examiner erred in rejecting claim 1 by finding that Merzon discloses, concurrently with causing media content listings to be presented, causing an alternate source indicator to be presented to a user within a media content listing responsive to determining that the corresponding media content item is available from one or more alternate sources of media content (“alternate source indicator limitation”)? ANALYSIS We begin by clarifying the Examiner’s mapping. In the rejection, the Examiner refers to Merzon’s designator in Figure 7 in connection with the alternate source indicator limitation and, in particular, finds that this designator may indicate a currently available show from a non-linear content source. Final Act. 4. Our emphasis underscores that the Examiner relies on the designator’s indication that content is not just available—but Appeal 2020-002022 Application 16/027,023 5 rather currently available—from a non-linear source, which the Examiner presumably maps to the recited alternate source of media content. Accord Ans. 5 (noting that Merzon’s designator 706 indicates that content is available from a non-linear source, and is selectable to cause the program to begin playing from the currently available non-linear content source). We see no error in these findings. As noted in the Abstract, Merzon’s system presents “linear” and “non-linear” content via a video recording device. In Merzon’s parlance, “linear” content sources provide content according to a specified schedule, such as broadcast television channels. Merzon ¶ 1. “Non-linear” content sources, on the other hand, allow users to access available content on demand. Id. As noted above, it is Merzon’s non-linear content sources that the Examiner apparently maps to the recited alternate media content sources. See Final Act. 4; Ans. 5. Merzon’s Figure 6 shows a method of alerting a user of a video recording device to an alternate source of a content item. Merzon ¶ 44. After querying for content at a second source, which can be a non-linear content source, the system evaluates whether content is available at the second source, namely whether content exists at that source as noted in the textual label for step 610 in Figure 6. See Merzon ¶¶ 45–46. If content is available at step 610, the system then determines whether the content is available now in step 622 and, if so, the content is recorded, the latter step involving either downloading or storing a pointer to non-linear content in steps 632 and 634. See Merzon ¶¶ 46, 48. Our emphasis underscores that Merzon distinguishes available content, namely that which exists in the second source, from content that is available now or available immediately—a distinction that is apparent from Appeal 2020-002022 Application 16/027,023 6 the two distinct determinations made in steps 610 and 622 of Merzon’s Figure 6. As shown in that figure, the first determination determines whether content exists at the second source in step 610—an existence determination that Merzon also indicates is an availability determination in paragraph 46. But this particular content availability determination merely determines whether the content exists at the second source: it does not mean that the content is necessarily available now or available immediately. See Merzon ¶ 46 (noting that content “available” at a second source is not necessarily “available now”). That immediate content availability determination, however, is made in step 622 and, if the content is available immediately, it is recorded—a recording step that can include storing a pointer, such as a URL, to the non- linear content’s location. See Merzon ¶¶ 48–49. Accord Ans. 7 (noting this functionality). Merzon’s Figure 7 shows a displayed user interface in a digital video recorder where notifications are provided in an electronic programming guide (EPG). Merzon ¶ 51. As shown in Merzon’s Figure 7 reproduced below, various programs are listed as shown on different channels and times, namely from 4 to 5 PM on channels 2 to 7. Appeal 2020-002022 Application 16/027,023 7 Merzon’s Figure 7 listing programs shown on different times and channels As shown above, Merzon’s user interface also includes designator 706 indicating that designated show, namely the sitcom scheduled for 5 PM on channel 6, is also available to watch now. See Merzon ¶¶ 52–53. That is, despite this show airing at 5 PM on channel 6, it is nonetheless also currently available from a non-linear content source, where selecting the designator 706 causes the program to begin playing. See id. ¶ 53. Notably, this functionality not only indicates that content is available from a linear source, namely that which provides the programs at their regularly scheduled times and channels, but also a non-linear source, namely that which provides the content on demand when selecting the appropriate indicator which, for the sitcom at 5 PM on channel 6, is designator 706. See Appeal 2020-002022 Application 16/027,023 8 Merzon ¶¶ 1 (distinguishing linear and non-linear content), 51–53; Fig. 7. Accord Ans. 4–5 (noting that Merzon’s EPG indicates that content is available from a linear source, and designator 706 indicates the content’s availability from a non-linear source). As noted above, because this designator indicates that the content is currently available for viewing now via a non-linear source, the designator is effectively presented responsive to determining that immediate availability. See Merzon ¶ 53. Otherwise, the designator would not be presented, as is the case with other programs in the EPG interface that are available only via a linear source, such as the local news at 5 PM on channel 7. See Merzon Fig. 7. Given this visual distinction, Appellant’s contention that Merzon’s designator is ostensibly displayed regardless of whether content is available from multiple sources (Appeal Br. 8) is unavailing. Appellant’s contention that Merzon’s designator 706 is not an alternate source indicator (Appeal Br. 7) is likewise unavailing, given the designator’s indication that content that is broadcast on a certain channel and at a particular time, namely 5 PM on channel 6, via a linear source is also available to view immediately via a non-linear source on demand. See Merzon ¶¶ 1, 51–53; Fig. 7. To be sure, content that is available at a second, non-linear source as determined in step 610 of Merzon’s Figure 6 may be available for recording at a later date as Appellant indicates. See Appeal Br. 8 (citing Merzon ¶ 46). Nevertheless, nothing in the claim precludes this availability determination and notification in step 614 even assuming, without deciding, that Merzon’s designator 706 enables users to record the immediately-viewed program at a later date—despite indicator 708 being used specifically for that purpose. Appeal 2020-002022 Application 16/027,023 9 See Merzon ¶¶ 46–47, 51–54 (noting that designator 708 indicates the show is scheduled to be recorded at some other time). In short, Appellant’s arguments are not commensurate with scope of the claim that does not preclude this functionality as the Examiner indicates. See Ans. 7 (noting that the claim does not require the content be viewed immediately, and causing content to be recorded and viewed later still meets the claim). That Appellant’s Specification indicates in paragraph 35 that a user can tune to a media content item if it is currently available, yet later in that paragraph notes that the media guidance application can determine whether media content items are available from an alternate content source only underscores the distinction between availability as claimed and current availability. Accord Spec. ¶ 56 (noting that “hollow” alternate source playback indicator 900 in Figure 9 indicates that a media content item is available from an alternate source that is currently unavailable). Nevertheless, even if the claim required determining a media content item’s current availability—which it does not—indicating that availability from an alternate source responsive to that determination is still taught by Merzon, as noted previously. Therefore, we are not persuaded that the Examiner erred in rejecting claim 1, and claims 2, 3, 6, 8–10, 13, 15–17, and 19 not argued separately with particularity. THE OBVIOUSNESS REJECTIONS We also sustain the Examiner’s obviousness rejections of claims 4, 5, 7, 11, 12, 14, 18, and 20. Final Act. 5–8. Because these rejections are not Appeal 2020-002022 Application 16/027,023 10 argued separately with particularity, we are not persuaded of error in these rejections for the reasons previously discussed. CONCLUSION In summary: Claims Rejected 35 U.S.C. § Reference(s)/ Basis Affirmed Reversed 1–3, 6, 8– 10, 13, 15– 17, 19 102(e) Merzon 1–3, 6, 8–10, 13, 15–17, 19 4, 5, 11, 12, 18 103(a) Merzon, Makhlouf 4, 5, 11, 12, 18 7, 14, 20 103(a) Merzon, Iki 7, 14, 20 Overall Outcome 1–20 TIME PERIOD FOR RESPONSE 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). See 37 C.F.R. § 41.50(f). AFFIRMED