Inre: Scott Schreer ( 2013 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
IN RE SCOTT P. SCHREER
______________________
2012-1564
______________________
Appeal from the United States Patent and Trademark
Office, Board of Patent Appeals and Interferences in
Serial No. 10/086,089
.
______________________
Decided: May 21, 2013
______________________
MICHAEL F. SARNEY, Katten Muchin Rosenman, LLP,
of New York, New York for appellant. With him on the
brief was SAMSON HELFGOTT.
NATHAN K. KELLEY, Deputy Solicitor, United States
Patent and Trademark Office, of Alexandria, Virginia for
appellee. With him on the brief were MONICA B. LATEEF
and ROBERT J. MCMANUS, Associate Solicitors.
______________________
Before RADER, Chief Judge, LOURIE and O’MALLEY, Circuit
Judges.
PER CURIAM.
2 IN RE: SCOTT SCHREER
The Board of Patent Appeals and Interferences
(Board) affirmed the rejection of Scott P. Schreer’s (Appel-
lant’s) United States Application No. 10/086,089 (the ’089
application). Because the Board correctly determined
that the claims would have been obvious to one of ordi-
nary skill in the art at the time of invention, this court
affirms.
I.
Songwriters, composers, lyricists, music publishers,
and owners of audio work (i.e., copyright holders) are
legally entitled to receive royalty payments whenever
their copyrighted musical creations are publicly per-
formed. For a variety of reasons, however, payment is not
always received. The ’089 application, filed on February
28, 2002, seeks to cure this problem by claiming a method
of compensating copyright holders. Generally speaking,
the claimed method consists of embedding identification
information in an audio file, broadcasting the audio file in
a public broadcast, receiving the audio file by a monitor-
ing station, correlating the identification information to a
copyright holder, and then compensating the copyright
holder.
In a Final Office Action, the examiner rejected claims
1–7 under 35 U.S.C. § 103(a) as being unpatentable over
U.S. Patent No. 6,253,193 (Ginter) in view of U.S. Patent
No. 6,385,596 (Wiser). The examiner rejected claims 8–11
under 35 U.S.C. § 103(a) as being unpatentable over
Ginter, in view of Wiser, and in further view of an indus-
try publication (BMI). The Board affirmed these rejec-
tions. On appeal to this court, Appellant does not dispute
the Board’s findings in regard to Wiser or BMI, nor does
he dispute that any of the above references can be com-
bined. The only issue on appeal is whether Ginter teach-
es or renders obvious a “public broadcast” as recited in
representative claim 1.
INRE: SCOTT SCHREER 3
Although Appellant raises additional arguments,
these arguments were never raised in front of the Board
and are therefore waived. In re Watts, 34 F.3d 1362, 1367
(Fed. Cir. 2004). Indeed, Appellant only presented a
single issue to the Board which is therefore properly
before this court: “[I]n understanding whether Ginter
teaches [the claimed limitation,] it is important to deter-
mine whether or not Ginter teaches a public broadcast.”
J.A. 784; see also J.A. 812–19.
Claim 1 recites:
1. A method of compensating at least one rights
holder responsible for content of a digital audio
recording file for the public performance of the
content, the content being included in a public
broadcast, the method comprising the steps of:
associating an identification with the digital audio
recording file to produce an identified digital au-
dio recording file;
generating an identification record correlating the
identification and the digital audio recording file;
broadcasting the identified digital audio recording
file as an audio signal in the public broadcast, the
public broadcast being made by one of a radio, tel-
evision, cable, satellite network and internet web-
site, the public broadcast capable of being
remotely receivable simultaneously by a plurality
of audience members of the public capable of re-
ceiving the audio signal being publicly broadcast;
receiving by a monitoring station the audio signal
being publicly broadcast;
feeding by said monitoring station the audio sig-
nal into monitoring means for detecting the iden-
tification;
4 IN RE: SCOTT SCHREER
storing and correlating by said monitoring station
the identification and data solely related to the
public broadcast and unrelated to whether even
any user constituting the audience members of
the public have received the broadcast, based on
the identification record as a batch file;
importing the batch file into a first database that
catalogs public performance, based upon the inci-
dence of the public broadcast and unrelated to the
number of actual audience users of the audio sig-
nal, and
using the first database to compensate the at least
one rights holder.
J.A. 787
II.
This court reviews factual findings of the Board for
substantial evidence. In re Gartside, 203 F.3d 1305, 1316
(Fed. Cir. 2000). Substantial evidence is “such relevant
evidence as a reasonable mind might accept as adequate
to support a conclusion.” Consol. Edison Co. v. NLRB,
305 U.S. 197, 229 (1938). Claim construction is a ques-
tion of law and is reviewed de novo. Gechter v. Davidson,
116 F.3d 1454, 1457 (Fed. Cir. 1997). Claims appealed
from the Board are given their broadest reasonable inter-
pretation in light of the specification. In re Bond, 910
F.2d 831, 833 (Fed. Cir. 1990). The ultimate conclusion of
obviousness is a legal question reviewed de novo based on
underlying factual determinations. In re Bigio, 381 F.3d
1320, 1324 (Fed. Cir. 2004).
III.
This court first considers whether the Board properly
construed the term “public broadcast” to mean “[t]o
transmit (a radio or television) program for public or
general use.” J.A. 807. This court finds no error in the
INRE: SCOTT SCHREER 5
Board’s construction. The ’089 specification does not
assign any explicit definition to the term, and Appellant
admits that the Board’s construction is within the term’s
ordinary meaning. Appellant’s Br. 27. Furthermore, the
Board’s construction is consistent with the claim lan-
guage, and is also consistent with Appellant’s own re-
marks during prosecution. For example, during
prosecution, Appellant remarked, “Accordingly, the use in
the specification, the common use of broadcast[,] and one
that is generally understood by all is that broadcast is a
performance on a radio or television or the like which is
sent publicly to many end users.” J.A. 536.
The Board’s construction is therefore well within rea-
son, and Appellant’s arguments to the contrary are un-
persuasive. Moreover, this court finds Appellant’s
proposed construction—“a transmission of sound or
images to the population in general, through radio or
television”—does not present a difference from the
Board’s construction that would affect the outcome of this
appeal.
IV.
Next this court considers the teaching of Ginter with
respect to the term “public broadcast.” In general, the
Ginter reference, titled “Systems and Methods for the
Secure Transaction Management and Electronic Rights
Protection,” discloses a “Virtual Distribution Environ-
ment” (VDE) that monitors and controls information
distributed through its system. E.g., Ginter col. 2 ll. 24–
27. Files, such as digital audio files, are associated with
identification information to produce an identified file
called a “VDE object.” Id. col. 58 ll. 43–46. The VDE
objects are broadcast in a public broadcast, as explained
below, and received by a monitoring station. Id. col. 65 ll.
59–65. The monitoring station uses the identification
information in the VDE object to generate usage meter-
ing, audit trail mapping, fingerprinting, and other infor-
6 IN RE: SCOTT SCHREER
mation. Id. fig. 25C. Owners and distributors of works
use this information for billing. Id. col. 3 ll. 20–24.
Substantial evidence supports the Board’s finding
that Ginter teaches a “public broadcast.” Ginter teaches
that “VDE supports a ‘universe wide’ environment for
electronic content delivery [and] broad dissemination.”
Id. col. 13 ll. 27–29. Such broad dissemination can in-
clude providing content through radio, television, live
performance, data streams, “real-time” teleconferencing,
and on-line bulletin boards. Id. col. 14 ll. 5–28; col. 27 ll.
56–61; col. 260 ll. 11–23. Moreover, content “may be
freely distributed on CD-ROM disks, through computer
networks, or broadcast through cable or by airwaves.” Id.
col. 254 ll. 30–34.
Appellant argues that Ginter does not teach a public
broadcast because users must pay a fee or be authorized
to receive content. To the contrary, Ginter does not
preclude owners and distributors from granting unre-
stricted access to a multitude of users. Ginter col. 260 ll.
11–23 (“[T]he preferred embodiment of the present inven-
tion can be modified to meet these changes for broad use,
or more focused activities.”). Moreover, simply requiring
a fee to view a broadcast (such as a “Pay-Per-View” event)
does not make the broadcast non-public. In addition,
claim 1 of the ’089 application recites a “public broadcast
being made by [a] . . . cable [or] satellite network.” Yet,
Appellant admits that “[s]atellite and cable transmissions
. . . are for use only by those who pay to receive them.”
Appellant’s Br. 24. Finally, as Appellant acknowledges,
broadcasts that do not require a fee or authorization were
well-known in the art at the time of invention. Appel-
lant’s Br. 23–24.
In sum, substantial evidence supports the Board’s
conclusion that Ginter discloses a public broadcast.
Because this is the only ground properly before the court
INRE: SCOTT SCHREER 7
on which Appellant argues the claims of the ’089 applica-
tion should have been allowed, this court affirms.
AFFIRMED