Appeal 2007-0635
Application 10/176,598
“While the sequence of these questions might be reordered in any particular case,
the factors continue to define the inquiry that controls. If a court, or patent
examiner, conducts this analysis and concludes the claimed subject matter was
obvious, the claim is invalid under §103.” KSR Int’l v. Teleflex Inc., 127 S.Ct.
1727, 1734, 82 USPQ2d 1385, 1391 (2007).
D. ANALYSIS
The question is whether claim 2 encompasses obvious subject matter. We
find that it does.
There is no dispute that Appellant is seeking to apply a popularity metric to
the ranking of media files on a media playback device which would involve the
consideration of how long a media file has been played. The Examiner correctly
conceded that Ward does not explicitly teach such a method.
However, the Examiner was on the right track in implying that Ward could
accomplish the same result. Although the Examiner did not expound on the point,
in response to Appellant’s argument the Examiner did emphasize that “[c]laim 2
recites that the popularity metrics are proportional to a total amount of playback
time that a user plays back a media file.” Answer 9. Emphasis original. We find the
inclusion of the term “proportional” in the claim to be the dispositive reason for
concluding that claim 2 encompasses obvious subject matter given the teaching in
Ward.
Giving claim 2 the broadest reasonable construction in light of the
specification as it would be interpreted by one of ordinary skill in the art, the claim
9
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