Ex Parte Schuster et al

Patent Trial and Appeal Board

Aug 30, 2018

12613264 (P.T.A.B. Aug. 30, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
12/613,264 11/05/2009 Bobbi Denise Schuster
86548 7590 09/04/2018
Garlick & Markison (IH)
106 E. 6th Street, Suite 900
Austin, TX 78701
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.
192-LAN-11-2008 5965
EXAMINER
REFAI,SAMM
ART UNIT PAPER NUMBER
3681
NOTIFICATION DATE DELIVERY MODE
09/04/2018 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):
MMurdock@TEXASPATENTS.COM
bpierotti@texaspatents.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte BOBBI DENISE SCHUSTER, MATTHEW FERRY,
JOHN FULBRIGHT, DAVID C. JELLISON JR., KOHINOOR BASU, and
STEVEN M. GABLE
Appeal2017-006688
Application 12/613,264
Technology Center 3600
Before ST. JOHN COURTENAY III, LARRY J. HUME, and
JOYCE CRAIG, Administrative Patent Judges.
COURTENAY, Administrative Patent Judge.
DECISION ON APPEAL
Appellants 1 appeal under 35 U.S.C. § 134(a) from a Non-Final
Rejection of claims 21--40. Claims 1-20 are cancelled. We have
jurisdiction over the pending claims under 35 U.S.C. § 6(b ).
We reverse.
1 According to Appellants, the real party in interest is iHeartMedia
Management Services, Inc., which is the assignee of the present Application.
App. Br. 3.
Appeal2017-006688
Application 12/613,264
STATEMENT OF THE CASE
Introduction
Appellants' invention generally relates to "radio stations and the
delivery of data to a network of radio stations," "transmission and delivery
of inventory management data," and "delivery of advertisement data." Spec.
Illustrative Claim
21. An audio content delivery method for a distributed radio
network, the method comprising:
requesting, through a plurality of radio network service
gateways associated with the distributed radio network, a
scheduling of one or more portions of audio content within
assigned audio content time slots, the radio network service
gateways comprising: a local market audio content delivery
system, a centralized hub injecting at least a portion of the
audio content into the local market audio content delivery
system and a partner system to send one or more portions of the
audio content to the centralized hub through a partner system
web interface;
aggregating, in an aggregation layer within the
centralized hub, communications including the one or more
portions of audio content and audio content schedules,
including at least audio content logs, between coupled ones of
the local market audio content delivery systems and the partner
system;
coordinating one or more partner system audio content
placement transactions within the distributed radio network
through communications between the plurality of network
service gateways in response to a partner request through the
partner system web interface to the plurality of radio network
service gateways;
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wherein the coordinating one or more partner system
audio content placement transactions with the distributed radio
network includes providing access to the one or more partner
systems for claiming at least one audio content time slot from a
group of previously assigned partner audio content time slots
included in a preliminary audio content log, wherein the
preliminary audio content log comprises an XML file with
metadata and partner IDs representing the previously assigned
partner audio content time slots, the preliminary audio content
log reflecting a copy of a local audio log that represents a local
radio station's audio play schedule; and
wherein the coordinating one or more partner system
audio content time slot placement transactions with the
distributed radio network further includes transforming both the
preliminary audio content log and the local audio content log by
automatically releasing one or more of the previously assigned
partner audio content time slots to a local market audio content
delivery system to replace the previously assigned partner audio
content time slots with local audio content time slots via the
distributed radio network if the previously assigned partner
audio content time slots are unclaimed by the one or more
partner systems just prior to audio content air time.
App. Br. 22-23 (Claims Appendix).
Rejection
The Examiner rejects claims 21--40 under 35 U.S.C. § 101, as being
directed to a judicial exception, without significantly more. Non-Final
Act. 3.
Issue on Appeal
Did the Examiner err in rejecting claims 21--40 under
35 U.S.C. § 101, as being directed an abstract idea, i.e., "an idea 'of itself
and a fundamental economic practice," without significantly more? Non-
Final Act. 4--5.
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Application 12/613,264
ANALYSIS
We have considered all of Appellants' arguments and any evidence
presented. We highlight and address specific findings and arguments for
emphasis in our analysis below.
The Examiner's Rejection under 35 US.C. § 101
The Examiner concludes that claims 21--40 are directed to judicial
exception, i.e., an abstract idea, without significantly more. In particular, the
Examiner concludes that all claims on appeal are directed to an idea of itself
and a fundamental economic practice. Non-Final Act. 3-5.
In support, the Examiner essentially recites the language of claim 21,
which is directed to "[ a ]n audio content delivery method for a distributed
radio network." Non-Final Act. 3. The Examiner essentially restates the
same analysis for the remaining claims on appeal. Non-Final Act. 3-13.
The Examiner additionally indicates that "[ c ]laims 21-40 would be
allowable if rewritten or amended to overcome the rejection(s) under 35
U.S.C. 101, set forth in this Office action." Non-Final Act. 13.
Mayo/Alice Analysis under 35 US.C. § 101
Under 35 U.S.C. § 101, a patent may be obtained for "any new and
useful process, machine, manufacture, or composition of matter, or any new
and useful improvement thereof." The Supreme Court has "long held that
this provision contains an important implicit exception: Laws of nature,
natural phenomena, and abstract ideas are not patentable." Alice Corp. Pty.
Ltd. v. CLS Banklnt'l, 134 S. Ct. 2347, 2354 (2014) (quotingAss'nfor
Molecular Pathology v. Myriad Genetics, Inc., 569 U.S. 576, 589 (2013)).
The Supreme Court in Alice reiterated the two-step framework previously
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set forth in Mayo Collaborative Services v. Prometheus Laboratories, Inc.,
566 U.S. 66, 82-84 (2012), "for distinguishing patents that claim laws of
nature, natural phenomena, and abstract ideas from those that claim patent-
eligible applications of those concepts." Alice, 134 S. Ct. at 2355.
The first step in that analysis is to determine whether the claims at
issue are directed to one of those patent-ineligible concepts, such as an
abstract idea. Abstract ideas may include, but are not limited to,
fundamental economic practices, methods of organizing human activities, an
idea of itself, and mathematical formulas or relationships. Alice, 134 S. Ct.
at 2355-57.
If the claims are not directed to a patent-ineligible concept, the inquiry
ends. See Visual Memory LLC v. NVIDIA Corp., 867 F.3d 1253, 1262 (Fed.
Cir. 2017).
Otherwise, the inquiry proceeds to the second step in which the
elements of the claims are considered "individually and 'as an ordered
combination' to determine whether the additional elements 'transform the
nature of the claim' into a patent-eligible application." Alice, 134 S. Ct. at
2355 (quoting Mayo, 566 U.S. at 79, 78).
Here, for essentially the same reasons argued by Appellants in the
Briefs, we need not reach Alice, step two, to decide this appeal.
We note abstract ideas have been identified by the courts by way of
example, as including fundamental economic practices, certain methods of
organizing human activities, an idea of itself, and mathematical relationships
and/or formulas. See Alice, 134 S. Ct. at 2355-56. Under the two-part test
described by the Supreme Court in Alice, "[ w ]e must first determine whether
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the claims at issue are directed to a patent-ineligible concept," such as an
abstract idea. Alice, 134 S. Ct. at 2355.
Based upon our review, we conclude independent claim 21 is directed
to a statutory process (method) of audio content delivery for a distributed
radio network that we do not consider as a fundamental economic practice,
or as a method of organizing human activities. Independent system claim 32
is directed to "[ a ]n audio delivery system for a distributed radio network"
and independent claim 37 is similarly directed to "[a]n audio content
delivery system for a distributed radio network."
Therefore, claims 32 and 37 are also directed to a statutory category
(i.e., a "system" being a machine). Although not dispositive to our inquiry,
we note that all claims on appeal are directed to statutory categories.
Appellants contend:
For example, a distributed radio network is not simply an
abstract idea. Audio logs are not simply an abstract idea.
Radio network service gateways are not simply an abstract idea.
In addition, a local market audio content delivery system, a
centralized hub server, a partner system server, partner system
web interface, preliminary audio content logs, XML files with
metadata, partner audio content time slots, a local audio log that
represents a local radio station's audio play schedule, a local
radio market integrated service layer (ISL), and a ticker feed
that includes identifying information about currently playing
audio content do not constitute simple abstract ideas.
App. Br. 14.
Appellants further contend:
[T]he claims as a whole are not directed to a "method of
organizing human activity," "fundamental economic practice
long prevalent in our system of commerce," nor "a building
block of the modem economy." In contrast, at a minimum,
independent claims 21, 3 2 and 3 7, et al. claim an audio content
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delivery method for a distributed radio network and include a
plurality of interworking gateway systems and integrated
service layer aggregations from various partners, specific
transactions and various locations (remote vs local) to effect at
least one transformation of XML files with metadata and
partner IDs for preliminary and local audio content logs to
provide just in time (just prior) processing for local radio
station broadcasts ( audio content air time) not provided by the
prior art (no art rejection).
Reply Br. 6.
We conclude Appellants' claims are directed to an audio content
distribution method ( or system) that involves scheduling (i.e.
"coordinating") audio content logs with audio content time slots, for
example, as follows:
wherein the coordinating one or more partner system
audio content time slot placement transactions with the
distributed radio network further includes trans/ arming both the
preliminary audio content log and the local audio content log
by automatically releasing one or more of the previously
assigned partner audio content time slots to a local market
audio content delivery system to replace the previously
assigned partner audio content time slots with local audio
content time slots via the distributed radio network if the
previously assigned partner audio content time slots are
unclaimed by the one or more partner systems just prior to
audio content air time.
Claim 21 ( emphasis added).
Independent claims 32 and 37 each recite similar language of
commensurate scope.
For essentially the same reasons argued by Appellants in the Briefs,
we find unavailing the Examiner's legal conclusion that the claims are
directed to a fundamental economic practice, i.e., an abstract idea. We
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conclude requesting the scheduling of audio content, aggregating
communications of audio content, and coordinating audio content placement
transactions within the distributed radio network according to designated
time slots is not categorically an abstract idea, nor a method of organizing
human activities.
We agree with Appellants' argument that independent claims 21, 32,
and 37 are directed to an audio content delivery method for a distributed
radio network that includes at least one transformation of XML audio
content logs to effect such audio content distribution according to time slots,
which we conclude is not an abstract idea nor a fundamental economic
practice. App. Br. 13-14.
Our inquiry ends here, at step one of the Alice analysis, because we
agree with Appellants the claims on appeal are not directed to a patent-
ineligible concept.
We, therefore, are constrained on this record to reverse the
Examiner's rejection of claims 21--40 under 35 U.S.C. § 101.
CONCLUSION
The Examiner erred in rejecting claims 21--40 under 35 U.S.C. § 101,
as being directed to a judicial exception ( an abstract idea).
DECISION
We reverse the Examiner's decision rejecting claims 21--40 under
35 U.S.C. § 101.
REVERSED
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