Appeal 2007-0635
Application 10/176,598
proportional to a popularity metric based on how long a media file has been played
because the Ward popularity metric operates in a way similar to that claimed in
those instances where a set of media files consists of some media files having not
been played at all and the rest having been played to completion. Claim 2 does not
limit applying the metric to any particular set of media files, and thus covers the
aforementioned situation where some media files in a set of media files have not
been played at all while the rest have been played to completion. Accordingly, the
subject matter claim of 2 overlaps that which Ward discloses, thus encompassing
obvious subject matter.
Regarding the argument that Ward does not teach the “a total amount of
playback time”, again, the claim calls for popularity metrics proportional to a total
amount of playback time that a user plays back a media file. It is not essential in
meeting the claim that the prior art teach “a total amount of playback time”. All
that is necessary to meet the claim is that the prior art shows using a popularity
metric which performs relatively the same way. And, in that regard, we find Ward
does precisely that in some instances.
E. CONCLUSION OF LAW
On the record before us, Appellants have failed to show that the Examiner
erred in rejecting claims 2, 4-9, and 12-16 over the prior art.
II. CLAIM 10
Claim 10 reads as follows:
11
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