The Nielsen Company (US), LLC

Patent Trials and Appeals BoardAug 12, 2020

2019003233 (P.T.A.B. Aug. 12, 2020)

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. 15/004,344 01/22/2016 Alan R. Neuhauser 20271/ARB070US03 8475 81905 7590 08/12/2020 Hanley, Flight & Zimmerman, LLC (Nielsen) 150 S. Wacker Dr. Suite 2200 Chicago, IL 60606 EXAMINER LERNER, MARTIN ART UNIT PAPER NUMBER 2657 NOTIFICATION DATE DELIVERY MODE 08/12/2020 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): docketing@hfzlaw.com jflight@hfzlaw.com mhanley@hfzlaw.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte ALAN R. NEUHAUSER and THOMAS W. WHITE Appeal 2019-003233 Application 15/004,344 Technology Center 2600 Before ERIC S. FRAHM, JUSTIN BUSCH, and JASON J. CHUNG, Administrative Patent Judges. BUSCH, Administrative Patent Judge. DECISION ON APPEAL Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the Examiner’s decision to reject claims 2, 4–9, and 11–23, which are all the claims pending. 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(a). Appellant identifies the real party in interest as The Nielsen Company (US), LLC. Appeal Br. 2. Appeal 2019-003233 Application 15/004,344 2 STATEMENT OF THE CASE INTRODUCTION The claimed subject matter generally relates to systems and methods “for gathering audience measurement data relating to receipt of and/or exposure to audio data by an audience member” by detecting a monitoring code in the audio data and extracting a signature characterizing the audio data. Spec., Abstract. Claims 2 (method), 9 (physical storage device to perform the method), and 16 (monitoring device to perform the method) are independent claims. Claim 2 is reproduced below: 2. A method of monitoring receipt or exposure to audio data, the method comprising: receiving audio data in a monitoring device, the audio data including a monitoring code encoded in the audio data according to an encoding technique, the monitoring code indicating that the audio data is to be monitored; processing the audio data, by executing an instruction with a processor of the monitoring device, to detect the monitoring code; and creating, by executing an instruction with the processor, a signature characterizing signal features of the audio data in response to detecting the monitoring code, the signature being created with a signature extraction technique, different from the encoding technique, based on variations of the signal features associated with at least a portion of the audio data that was modified according to the encoding technique to encode the monitoring code. THE PENDING REJECTIONS Claims 2, 4, 9, 11, 16, 17, 22, and 23 stand rejected under 35 U.S.C. § 102 as anticipated by Gross (US 4,972,471; Nov. 20, 1990). Final Act. 2– 6. Appeal 2019-003233 Application 15/004,344 3 Claims 5–8, 12–15, and 18–21 stand rejected under 35 U.S.C. § 103 as obvious in view of Gross and Jensen (5,764,763; June 9, 1998). Final Act. 6–11. ANALYSIS THE ANTICIPATION REJECTION OF CLAIMS 2, 9, AND 16 The majority of the disputes between Appellant and the Examiner can be resolved by determining what is required by “creating . . . a signature characterizing signal features of the audio data . . . with a signature extraction technique . . . based on variation of the signal features associated with at least a portion of the audio data that was modified according to the encoding technique to encode the monitoring code.” More specifically, we address the proper scope of the recited “signal features associated with at least a portion of the audio data that was modified according to the encoding technique to encode the monitoring code” (emphasis added). The Examiner construes “a portion of the audio data that was modified according to the encoding technique to encode the monitoring code” (hereinafter, the “disputed portion of audio data”) as a segment of audio data that at includes both the monitoring code and the signature. Final Act. 12; see Ans. 13–16; id. at 15 (“Appellant[‘s] ‘a portion of the audio signal’, then, can clearly be defined to include the digital start sequence and the five seconds of audio data after the digital start sequence that is used to generate the fingerprint or identity code.”). More specifically, the Examiner concludes that the claim merely requires “that there is some portion of the audio data that includes both the signature (fingerprint) and the monitoring code (start code), where at least some of this portion was previously modified to generate the monitoring code (start code).” Ans. 14. Appeal 2019-003233 Application 15/004,344 4 We reproduce here the Examiner’s exemplary figure depicting this construction: Final Act. 12 (a figure depicting an exemplary “portion of the audio data,” according to the Examiner); see Ans. 15–16. In the Examiner’s exemplary figure, depicted above, “M” represents only the portion of the audio signal in which the recited monitoring code (called the “start code” in Gross) is encoded, the repeating “F” represents only the portion of the audio signal used to generate the recited fingerprint, and the dashes represent other portions of audio that do not include the monitoring code and are not used to generate the fingerprint. See Final Act. 12–13 (explaining that the disputed portion of audio data “contains both the monitoring code M and the fingerprint or ‘signature’ FFFFF.”). The Examiner finds the entire portion of the signal depicted above (the data between the less than sign on the left and the greater than sign on the right including the monitoring code, the portion used to generating the fingerprint, and the other portions) constitutes the disputed portion of audio data. Final Act. 12; Ans. 15–16. The Examiner also notes that the claims merely recite creating the signature based on variations in signal features “associated with at least” the disputed portion of audio data. Ans. 19. The Examiner concludes the “associated with” language broadens Appellant’s claim scope such that the claims do not even require that the signature need not come from within the disputed portion of audio data, but instead needs only to be “associated with” that disputed portion of audio data. Ans. 19. Appeal 2019-003233 Application 15/004,344 5 Appellant, on the other hand, asserts that the portion of the audio signal following the monitoring code cannot be part of the disputed portion of audio data. Appeal Br. 9–11; Reply Br. 4–8. Appellant argues the Examiner’s proposed construction ignores the claim language, which recites that the disputed portion of audio data was modified to encode the monitoring code. Appeal Br. 9–11. Appellant argues the Examiner’s parsing of the claim language “divorce[s] the ‘audio data that is used to generate the fingerprint’ from the audio data including the ‘start code.’” Reply Br. 5–6. Appellant argues the Examiner’s proposed construction, which divorces the monitoring code from the signature, is inconsistent with the claim language. Reply Br. 5–7. More specifically, Appellant asserts the claims require an “overlap in the audio data including the monitoring code and the audio data used to create the signature,” such that “the claim[ed] monitoring code and the claimed signature must have at least ‘a portion of audio data’ in common.” Reply Br. 7. Given Appellant’s proposed construction, Appellant contends Gross’s audio data following the monitoring code (i.e., Gross’s fingerprint, which the Examiner finds discloses the recited signature, that follows Gross’s start code, which the Examiner finds discloses the recited monitoring code) was not modified to encode the monitoring. Appeal Br. 11. In particular, Appellant contends “the portion of the audio signal used by Gross to generate its fingerprint does not include any audio data that was also modified to encode its start code.” Appeal Br. 8; id. at 11. Appellant argues Gross, therefore, fails to disclose the claimed subject matter. Appeal Br. 11. When construing claim terminology during prosecution before the Office, claims are to be given their broadest reasonable interpretation Appeal 2019-003233 Application 15/004,344 6 consistent with the Specification, reading claim language in light of the Specification as it would be interpreted by one of ordinary skill in the art. In re Am. Acad. of Sci. Tech Ctr., 367 F.3d 1359, 1364 (Fed. Cir. 2004). We presume that claim terms have their ordinary and customary meaning. See In re Translogic Tech., Inc., 504 F.3d 1249, 1257 (Fed. Cir. 2007) (“The ordinary and customary meaning is the meaning that the term would have to a person of ordinary skill in the art in question.”) (internal quotation marks omitted). A correct construction in light of the specification is “an interpretation that corresponds with what and how the inventor describes his invention in the specification, i.e., an interpretation that is ‘consistent with the specification.”’ Smith, 871 F.3d at 1382–83 (quoting In re Morris, 127 F.3d 1048, 1054 (Fed. Cir. 1997)). We are mindful, however, that limitations are not to be read into the claims from the Specification. In re Van Geuns, 988 F.2d 1181, 1184 (Fed. Cir. 1993). First, we look to the plain language of the claims. At the heart of this dispute is the proper scope of the recited “portion of the audio data that was modified . . . to encode the monitoring code.” Based on the plain language, we agree with the Examiner. Although the disputed portion of audio data must include the encoded monitoring code, we see nothing in the plain language of the claims that precludes the disputed portion of audio data from including additional segments of the audio data beyond only the audio data that includes the monitoring code. This construction is consistent with the Specification, which discloses that the portion of audio data used to generate the fingerprint not only is not limited to the particular portion in which the system encodes the monitoring code but, in at least some embodiments, does not need to even include that Appeal 2019-003233 Application 15/004,344 7 particular portion in which the system encodes the monitoring code. Spec. ¶¶ 55 (“signature data is to be formed from at least a portion of the audio data relative to the monitoring code” (emphasis added)), 59 (disclosing using two monitoring codes “as ‘start’ and ‘end’ codes . . . defining the boundary between the first and second portions as the center, or some other predetermined point, of the program segment in order to determine the time boundaries of the segment” (emphases added)). Additional disclosures fail to specify whether the signature is generated using the particular portion of the audio signal encoding the monitoring code. See, e.g., Spec. ¶¶ 36–39, 60, 63. On the other hand, when describing particular embodiments that generate the signature using the particular portion of the audio signal encoding the monitoring code, the Specification describes “the ability to use the code as part of, or as part of the process for forming, the audio signature data.” Spec. ¶ 64. Moreover, as the Examiner noted, Appellant chose terms that add breadth to the claim. Although the claims include other broad phrases (e.g., “based on”), we focus only the phrase “associated with,” which the Examiner identified as affecting the construction with respect to the cited art. In particular, the claims recite “creating . . . a signature . . . based on variations of the signal features associated with at least a portion of the audio data that was modified . . . to encode the monitoring code.” Appeal Br. 19 (emphasis added). As the Examiner explained, the signature is created from variations in signal features associated with the disputed portion of audio data, which further broadens the disputed limitation. In particular, even if we were to agree that the disputed portion of audio data was limited to only the audio data encoding the monitoring code, signal Appeal 2019-003233 Application 15/004,344 8 features “associated with” the monitoring code does not preclude using signal features from portions of the audio data before or after the monitoring code (i.e., portions “relative to the monitoring code”). See Spec. ¶ 76. We understand what Appellant’s intend to claim, see Spec. ¶ 64, but we disagree that the claim language, as recited, precludes a construction in which “the monitoring code ‘M’ and the fingerprint ‘FFFFF’ have no audio data in common.” See Reply Br. 6; see also In re Hiniker Co., 150 F.3d 1362, 1369 (Fed. Cir. 1998) (“[T]he name of the game is the claim.”). In other words, as recited, the claim merely requires (1) encoding a monitoring code in “a portion of audio data” (i.e., that portion of audio data that was modified to encode the monitoring code) and (2) generating a signature based on variations in signal features of the same portion of audio data. Notably, the disputed portion of audio data must include the audio data in which the monitoring code is encoded, but the claim does not preclude the disputed portion of audio data from including additional audio data. Although the recited language could be construed as Appellant wishes, the record does not demonstrate that such a construction is the broadest reasonable interpretation consistent with the Specification. Because “applicants may amend claims to narrow their scope, a broad construction during prosecution creates no unfairness to the applicant or patentee.” In re ICON Health & Fitness, Inc., 496 F.3d 1374, 1379 (Fed. Cir. 2007) (citation omitted). We determine the Examiner’s construction, although broad, is reasonable and consistent with the Specification in light of the evidence before us. Therefore, on this record, we disagree with Appellant’s proposed reasonable, but narrower construction. Appellant’s assertions regarding Appeal 2019-003233 Application 15/004,344 9 Gross’s failure to disclose each limitation recited in representative claim 2 are based on a construction with which we disagree. Under our construction, we agree with the Examiner that Gross discloses the disputed limitation and, therefore, we sustain the rejection of representative claim 2 as anticipated by Gross. Appellant asserts claims 9 and 16 are not anticipated for the same reasons asserted with respect to representative claim 2. Appeal Br. 11–12. We also sustain the rejection of independent claims 9 and 16. THE OBVIOUSNESS REJECTION OF CLAIMS 6, 13, AND 19 Claims 6, 13, and 19 depend directly from claims 2, 9, and 16, respectively. Claims 6, 13, and 19 further recite that “the portion of the audio data used to create the signature further includes a source identification code.” Appeal Br. 20, 22, 24. Appellant argues the Examiner improperly interprets claim 6’s recited signature and identification code as the same thing because the Examiner finds Gross’s fingerprint discloses both the recited signature and the recited identification code. Appeal Br. 13. Appellant further argues Jensen does not cure this alleged deficiency because neither Gross nor Jensen teaches a single portion of audio data associated with three different features—a monitoring code, a signature, and a source identification code. Appeal Br. 13. Appellant argues the rejection of claims 13 and 19 suffers from the same deficiencies. Appeal Br. 14–15. The Examiner finds Gross teaches the monitoring code and the signature being present in the same disputed portion of audio data. See supra (discussing Appellant’s arguments that Gross does not disclose generating a signature based on features associated with the disputed portion of audio data). Contrary to Appellant’s assertion, the Examiner does not find Gross’s start code teaches or suggests both the monitoring code and the Appeal 2019-003233 Application 15/004,344 10 source identification code. As the Examiner explained in the Answer, the Examiner finds Jensen teaches or suggests the source identification code. Ans. 21–23 (citing Jensen 10:58–68, 31:25–58). The Examiner finds Jensen encodes messages in audio data similar to how Gross encodes message and explains that the resulting combination teaches the disputed subject matter. Ans. 23. In the Answer, the Examiner alternatively finds that Gross teaches or suggests the source identification code because Gross’s signals include codes that “allow separate identification of such radio stations and any ‘fingerprint’ signals.” Ans. 24 (quoting Gross 3:57–61). We agree that this disclosure in Gross at least suggests a source identification code in the audio data because Gross discloses identifying the radio station from which the audio data originated. In the Reply Brief, Appellant argues “the portion of the audio data used to create the signature must also include a source identification code.” Reply Br. 10–11. This argument is similar to Appellant’s argument regarding the independent claims and is based on Appellant’s asserted construction of the disputed proton of audio data. As discussed above, under our adopted construction, we find this argument unpersuasive. Moreover, Appellant does not address the Examiner’s alternative finding that Gross at least suggests the source identification code because Gross discloses the ability to identify the radio station that transmitted the audio data. Accordingly, we sustain the rejection of claims 6, 13, and 19 as obvious in view of Gross and Jensen. Appeal 2019-003233 Application 15/004,344 11 THE ANTICIPATION REJECTION OF CLAIMS 22 AND 23 Claims 22 and 23 depend directly from claims 2 and 16, respectively. Claims 22 and 23 further recite that “the audio data is second audio data, and the second audio data was modified by adding the monitoring code to first audio data according to the encoding technique to form the second audio data encoded with the monitoring code.” Appeal Br. 24. Although Appellant presents separate argument for these claims, Appellant presents substantively similar arguments as presented with respect to independent claim 2. Appeal Br. 15–17 (arguing Gross does not disclose generating a signature from the portion of audio that was modified by adding the encoded monitoring code into audio data to generate altered audio data). For the same reasons explained above with respect to independent claim 2, we sustain the rejection of claims 22 and 23 as anticipated by Gross. THE ANTICIPATION REJECTION OF CLAIMS 4, 11, AND 17 Claims 4, 11, and 17 depend directly from claims 2, 9, and 16, respectively. Appellant argues only that claims 4, 11, and 17 are allowable for the same reasons as the independent claims from which they depend. See Appeal Br. 11–12. For the same reasons explained above with respect to independent claims 2, 9, and 16, we sustain the rejection of claims 4, 11, and 17 as anticipated by Gross. THE OBVIOUSNESS REJECTION OF CLAIMS 5, 7, 8, 12, 14, 15, 18, 20, AND 21 Claims 5, 7, and 8 depend ultimately from independent claim 2, claims 12, 14, and 15 depend ultimately from independent claim 9, and claims 18, 20, and 21 depend ultimately from independent claim 16. Appellant argues only that these claims are allowable for the same reasons as the independent claims from which they depend. See Appeal Br. 11–12. Appeal 2019-003233 Application 15/004,344 12 For the same reasons explained above with respect to independent claims 2, 9, and 16, we sustain the rejection of claims 5, 7, 8, 12, 14, 15, 18, 20, and 21 as obvious in view of Gross and Jensen. DECISION SUMMARY2 Claims Rejected 35 U.S.C. § References Affirmed Reversed 2, 4, 9, 11, 16, 17, 22, 23 102 Gross 2, 4, 9, 11, 16, 17, 22, 23 5–8, 12–15, 18–21 103 Gross, Jensen 5–8, 12–15, 18–21 Overall Outcome 2, 4–9, 11–23 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). See 37 C.F.R. § 1.136(a)(1)(iv). AFFIRMED 2 We accept Appellant’s statement that omitting the related appeal information was merely an oversight. This accidental omission does not affect the weight we give to Appellant’s arguments.