Miles Lennon et al.

Patent Trials and Appeals Board

Dec 4, 2019

15282375 - (D) (P.T.A.B. Dec. 4, 2019)

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.
15/282,375 09/30/2016 Miles LENNON 020143-5069-US 1272
24341 7590 12/04/2019
Morgan, Lewis & Bockius LLP (PA)
1400 Page Mill Road
Palo Alto, CA 94304-1124
EXAMINER
PHAM, HUNG Q
ART UNIT PAPER NUMBER
2159
NOTIFICATION DATE DELIVERY MODE
12/04/2019 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):
padocketingdepartment@morganlewis.com
vskliba@morganlewis.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte MILES LENNON, RAFAEL MUMME, JASON GAVRIS,
MINWEI GU, and MATEO RANDO

____________

Appeal 2018-007429
Application 15/282,375
Technology Center 2100
____________

Before ELENI MANTIS MERCADER, DENISE M. POTHIER, and
CATHERINE SHIANG, Administrative Patent Judges.

SHIANG, Administrative Patent Judge.

DECISION ON APPEAL
Appellant1 appeals under 35 U.S.C. § 134(a) from the Examiner’s
rejection of claims 1–13 and 15–20, which are all the claims pending and
rejected in the application. We have jurisdiction under 35 U.S.C. § 6(b).
We reverse.

1 We use “Appellant” to refer to “applicant” as defined in 37 C.F.R. § 1.42.
Appellant identifies Spotify AB as the real party in interest. App. Br. 3.

Appeal 2018-007429
Application 15/282,375

2
STATEMENT OF THE CASE
Introduction
The present invention “generally relates to the provision (e.g.,
streaming) of media, and more particularly to adapting a play list including a
queue of playable audio items (e.g., songs).” Spec. ¶ 1.
In a first of its aspects, this disclosure concerns a method
for playlist adaption. The method is performed by a server
having one or more processors and memory storing instructions
for execution by the one or more processors. The method
comprises receiving a request to play a selected playlist from a
first electronic device associated with a host listener. The
playlist includes audio items having a common attribute. The
method further comprises receiving an identity of a guest
listener having a second electronic device, and retrieving an
indication of taste of the guest listener based on the received
identity. An additional audio item is selected based at least in
part on the indication of taste of the guest listener and the
common attribute of the audio items of the selected playlist.
The additional audio item is incorporated into the selected
playlist.

Spec. ¶ 5. Claim 1 is exemplary:
1. A method for playlist adaption, the method being performed
by a server having one or more processors and memory storing
instructions for execution by the one or more processors, the method
comprising:
receiving a request, from a host listener associated with a
selected playlist, to play the selected playlist from a first electronic
device associated with the host listener, the playlist including audio
items having a common attribute;
automatically receiving an identity of a guest listener having a
second electronic device, without explicit input from the guest listener
after the second electronic device comes within range of the first
electronic device;
retrieving an indication of taste of the guest listener based on
the received identity;
Appeal 2018-007429
Application 15/282,375

3
selecting an additional audio item based at least in part on the
indication of taste of the guest listener and the common attribute of
the audio items of the selected play list; and
while streaming a first media item of the selected playlist in
response to the request, incorporating the additional audio item into
the selected playlist.

References and Rejection2
Claims 1–20 are rejected under 35 U.S.C. § 103 as being unpatentable
over Parekh (US 2013/0268593 A1; Oct. 10, 2013) and Ruhstaller (US
2016/0174036 A1; June 16, 2016). Final Act. 3–6.

ANALYSIS
We have reviewed the Examiner’s rejection in light of Appellant’s
contentions and the evidence of record. We concur with Appellant’s
contentions that the Examiner erred in determining the cited portions of
Parekh and Ruhstaller collectively teach “automatically receiving an identity
of a guest listener having a second electronic device, without explicit input
from the guest listener after the second electronic device comes within range
of the first electronic device,” as recited in independent claim 1 (emphases
added). See App. Br. 11–13; Reply Br. 4–7.
The Examiner finds:
PAREKH does not explicitly teaches that user C’s
identity is automatically received, without explicit input from
the guest listener after the second electronic device comes
within range of the first electronic device.

2 Throughout this opinion, we refer to the (1) Final Office Action dated Sept.
27, 2017 (“Final Act.”); (2) Appeal Brief dated Mar. 22, 2018 (“App. Br.”);
(3) Examiner’s Answer dated May 15, 2018 (“Ans.”); and (4) Reply Brief
dated July 19, 2018 (“Reply Br.”).
Appeal 2018-007429
Application 15/282,375

4

RUHSTALLER teaches that a user identity is
automatically received, without explicit input from a guest
listener after a second electronic device comes within range of
a first electronic device (RUHSTALLER, § 0028).

Final Act. 4.
RUHSTALLER discloses a system and method for
streaming media files. System 300 as in FIG. 3 of
RUHSTALLER is an example. RUHSTALLER teaches that
upon arrival at a location 380 where a song is played by a host
user, a guest user, e.g., Grayson, uses his/her device to capture a
sample of the audio playing and transmit the sample to the
system 300, wherein the transmission includes the identification
data of the guest user (RUHSTALLER, ¶ 0028).
RUHSTALLER further teaches that system 300 determines that
Grayson is a guest user co-present with host user at location
380 accordingly with a search for instance of the captured
sample (RUHSTALLER, ¶ 0031).

Ans. 4.
We disagree with the Examiner. Ruhstaller describes:
Upon arrival at the location 380 where Lauren is playing the
songs from her playlist 360, Grayson may use his own guest
user device 370, e.g., phone 370, to capture a sample of the
audio playing, e.g., song #6, “Get Up and Dance.”
Accordingly, Grayson may transmit the captured sample to the
system 300. The transmission may include identification data
which identifies Grayson’s guest user device 370.

. . .

Referring back to FIG. 3, the system 300 may receive the
transmission from the guest user device 370 and compare the
received sample against one or more currently streaming audio
channels managed by the system 300. Based on the
Appeal 2018-007429
Application 15/282,375

5
comparison, the system 300 may find a matching stream for the
sample and determine that Grayson is present at the location
380 currently streaming the matching song.

. . .

[T]he system may use audio fingerprinting to identify the
sample with as being a portion of the song “Get Up and
Dance.” Having identified the sample, the system 300 may
execute a search for instances of “Get Up and Dance” streaming
and find an instance associated with Lauren’s user account and
presently streaming in sync with the timing of the sample.
Accordingly, the system 300 may determine that the Grayson is
a guest user 330 co-present with host user 320 Lauren at the
location 380.

Ruhstaller ¶¶ 28, 30–31 (emphases added).

Because Ruhstaller requires “Grayson [to] transmit the captured
sample to the system” in order for the system to receive Grayson’s
identity (Ruhstaller ¶¶ 28, 30–31), the Examiner has not persuasively
explained why the transmission does not constitute “explicit input
from” Grayson. To the contrary, Grayson’s transmitting the captured
sample involves an “explicit input from the guest listener” (claim 1).
As a result, the Examiner has not adequately explained why Parekh
and Ruhstaller collectively teach “automatically receiving an identity
of a guest listener having a second electronic device, without explicit
input from the guest listener after the second electronic device comes
within range of the first electronic device,” as required by claim 1
(emphases added).
Appeal 2018-007429
Application 15/282,375

6
Because the Examiner fails to provide sufficient evidence or
explanation to support the rejection, we are constrained by the record to
reverse the Examiner’s rejection of claim 1.
We also reverse the Examiner’s rejection of claims 2–13 and 15–20
for similar reasons, as each of claims 2–13 and 15–20 recites a claim
limitation that is substantively similar to the disputed limitation of claim 1,
and the Examiner applies the same findings and conclusions (discussed
above) to those claims.

CONCLUSION
We reverse the Examiner’s decision rejecting claims 1–13 and 15–20
under 35 U.S.C. § 103.
In summary:

Claims
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1–13, 15–
20
103 Parekh, Ruhstaller 1–13, 15–20

REVERSED