Appeal No. 2006-3231
Application No. 09/955,691
signatures based on the media link embedded in the program. (Br. 22). The Examiner
maintains that Thomas at columns 17-18 teaches the generation of a subset of signatures
based upon the ancillary code/media link (Answer, 5). From our review of the cited
portions of Thomas, we find no teaching generating a subset of signatures based upon the
ancillary code/media link. While we may consider the use of the media link to identify
the one reference signature of the tuned program, this would be insufficient to anticipate
the claim since the limitation requires a “subset of signatures” which would be a set of at
least two signatures. Therefore, the Examiner has not established a prima facie case of
anticipation, and we cannot sustain the rejection of dependent claim 24 and its dependent
claims 31-33 and 50 under 35 U.S.C. § 102 and claims 26-28 and 30 under 35 U.S.C.
§ 103(a ).
With respect to independent claim 29, Appellants contend that Thomas does not
teach (1) using closed captioning information to select a reference signature from a
library, or (2) comparing a broadcast signature of a broadcast program associated with the
closed captioning information to the selected reference signature as recited in claim 29
and that Thomas does not anticipate claim 29 (Br. 24). The Examiner maintains that in
Thomas the ancillary codes are inherently closed captioning information since they are
found in the vertical blanking intervals in the program. While we find that the Killian
reference at column 4 (not applied here) does indicate that closed captioning information
is also found in the vertical blanking interval (VBI) of the video transmission, we cannot
agree with the Examiner that ancillary codes are necessarily closed captioning
information. Moreover, the Examiner has not shown that this closed captioning
information is used to select a reference signature.
35 U.S.C. § 103
In rejecting claims under 35 U.S.C. § 103, the examiner bears the initial burden of
presenting a prima facie case of obviousness. See In re Rijckaert, 9 F.3d 1531, 1532, 28
USPQ2d 1955, 1956 (Fed. Cir. 1993). A prima facie case of obviousness is established
by presenting evidence that the reference teachings would appear to be sufficient for one
of ordinary skill in the relevant art having the references before him to make the proposed
combination or other modification. See In re Lintner, 458 F.2d 1013, 1016, 173 USPQ
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