Netflix, Inc. v. Blockbuster, Inc.

Filing 101

Attachment 13
Declaration of Ashok Ramani in Support of 100 Brief Declaration of Ashok Ramani In Support Of Netflix's Opening Claim-Construction Brief filed byNetflix, Inc.. (Attachments: # 1 Exhibit 1# 2 Exhibit 2# 3 Exhibit 3# 4 Exhibit 4# 5 Exhibit 5# 6 Exhibit 6# 7 Exhibit 7.1# 8 Exhibit 7.2# 9 Exhibit 7.3# 10 Exhibit 8# 11 Exhibit 9# 12 Exhibit 10# 13 Exhibit 11# 14 Exhibit 12# 15 Exhibit 13)(Related document(s)100) (Ramani, Ashok) (Filed on 12/6/2006)

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Netflix, Inc. v. Blockbuster, Inc. Doc. 101 Att. 13 Case 3:06-cv-02361-WHA Document 101-14 Filed 12/06/2006 Page 1 of 6 EXHIBIT 11 Dockets.Justia.com Case 3:06-cv-02361-WHA lr Document 101-14 Filed 12/06/2006 / Page 2 of 6 UNITED STATES PATENT AND TRADEMARK OFFICE UNITED STATES DEPARTMENT OF COMMRCE United Slates Patcnt and Trademark Offce Addr COMMISSIONER FOR PATENTS P.O.80.14S0 Alexdr Virinia nm-14S0 ww,USpl.gov APPLICA nON NO. FILING DATE FIRST NAMEI?INVENOR ATTORNY DOCKET NO. CONFIRMTION NO. 10/438,727 29989 05/14/2003 7590 W. Reed Hastings 56055-00 i 9 7297 EXAMINER RUDY, ANDREW J 10/291200 HICKMAN PALERMO TRUONG & BECKER, LLP 1600 WILLOW STREET SAN JOSE, CA 95125 ART UNIT PAPER NUMBER 3627 DArE MAILED: 10/2912004 Please find below and/or attached an Offce communication concerning this application or proceeding. PTO-90C (Rev. 10/03) NFLlX0000654 Case 3:06-cv-02361-WHA Document 101-14 Application No. Filed 12/06/2006 ApplIcant(s) HASTINGS ET AL. Ar Unit Page 3 of 6 10/438,727 Office Action Summary Examiner Andrew Joseph Rudy 3627 - The MAILING DA TE of this communication appears on the cover sheet with the correspondence address - Period for Reply A SHORTENED STATUTORY PERIOD FOR REPLY IS SET TO EXPIRE J MONTH(S) FROM THE MAILING DATE OF THIS COMMUNICATION. Exensions of time may be available under the provisions of 37 CFR 1.136(a). In no event, however, may timely filed a reply be after SiX (6) MONTHS from the mailing date of this communication. - If the perod for reply specified above is less than thirty (30) days, a reply within the statutory minimum of thirt (30) days will be considered timely. - If NO penod for reply is specified above, the maximum statutory period will apply and will expre SiX (6) MONTHS from the mailing date of this comunication. - Failure to reply within the set or extended period for reply wil, by statute, cause the application 10 beme ABANDONED (35 U.S.C. § 133). Any reply received by the Offce later than three months after the mailing date of this communication, even if timely filed, may reduce any earned patent term adjustment. See 37 CFR 1.04(b). Status 1)~ Responsive to communication(s) filed on 10 Seotember 2004. 2a)0 This action is FINAL. 2b)0 This action is non-finaL. 3)0 Since this application is in condition for allowance except for formal matters, prosecution as to the merits is closed in accordance with the practice under Ex parte Quayle. 1935 C.D. 11,453 O.G, 213. Disposition of Claims 4)~ Claim(s) 55-94 is/are pending in the application. 4a) Of the above claim(s) _ is/are withdrawn from consideration. 5)0 Claim(s) _ is/are allowed. 6)~ Claim(s) 55-94 is/are rejected. 7)0 Claim(s) _ is/are objected to. 8)0 Claim(s) _ are subject to restriction and/or election requirement. Application Papers 9)0 The specification is objected to by the Examiner. 10)0 The drawing(s) fied on _ is/are: a)D accepted or b)O objected to by the Examiner. Applicant may not request that any objection to the drawing(s) be held in abeyance. See 37 CFR 1.85(a). Replacement drawing sheet(s) including the correction is required if the drawing(s) is objected to. See 37 CFR 1.121 (d). 11)0 The oath or deciaration is objected to by the Examiner. Note the attached Offce Action or form PT0-152. Priority under 35 U.S.C. § 119 12)0 Acknowledgment is made of a claim for foreign priority under 35 U,S.C. § 119(a)-d) or (t). a)O All b)O Some * c)O None of: 1.0 Certified copies of the priority documents have been received. 2.0 Certified copies of the priority documents have been received in Application No. _' 3.0 Copies of the certified copies of the priority documents have been received in this National Stage application from the International Bureau (PCT Rule 17.2(a)). · See the attached detailed Offce action for a list of the certified copies not received. Attachment(s) 1) 18 Notice of References Cited (PTO-892) 2) D Notice of Draftperson's Patent Drawing Review (PTO-948) 4) 0 Interview Summary (PT0-13) Paper No(s)/Mail Date. _ . 5) 0 Notice of Informal Patent Application (PTO-152) 3) I8 Information Disclosure Statement(s) (PTO-1449 or PTO/SS/D8) Paper NO(s)/Maii Date _' U.S. Patent and Trademrk Offce 6) 0 Other:_. Offce Action Summary Part of Paper NO./Mail Date 7 ProL-326 (Rev. 1-04) NFLlX0000655 Case 3:06-cv-02361-WHA . Document 101-14 ., Filed 12/06/2006 Page 4 of 6 Page 2 Application/Control Number: 10/438,727 Art Unit: 3627 DETAILED ACTION 1. Claims 55-94 are pending. Applicant cancelled claims 1-54. Claim Rejections - 35 USC §IOI 2. Claims 55-94 are rejected under 35 US.C. 101 because the claimed invention is directed to non-statutory subject matter. The basis of ths rejection is set forth in a two-prong test of: (I) whether the invention is within the technological ars; and (2) whether the invention produces a useful, concrete, and tangible result. For a claimed invention to be statutory, the claimed invention must be withn the technological ars. Mere ideas in th~ abstract (i.e., abstract idea, law of natue, natual phenomena) that do not apply, involve, use, or advance the technological arts fail to promote the "progress of science and the useful ars" (i.e" the physical sciences as opposed to social sciences, for example) and therefore are found to be non-statutory subject matter. For a process claim, the recited process must somehow apply, involve, use, or advance the technological ars. In the present case, claims 55-94 only recite an abstract idea. The recited steps of establishing, causing to be delivered, selecting and updating does not apply, involve, use, or advance the technological ars since all of the recited steps can be performed in the mind of the user or by use of a pencil and paper. The terms "computer implemented" and "Internet," as claimed, do not obviate ths line of reasoning. These steps only constitute an idea of how to rent a movie. The computer need not be present to execute any of the steps, and if executed may merely be given by hand (digital data) or orally. NFLlX0000656 Case 3:06-cv-02361-WHA . Document 101-14 ., Filed 12/06/2006 Page 5 of 6 Application/Control Number: 10/438,727 Page 3 Ar Unit: 3627 Claim Rejections - 35 USC § 103 3. The following is a quotation of35 U.S.c. 103(a) which forms the basis for all obviousness rejections set forth in this Offce action: (a) A patent may not be obtained though the invention is not identically disclosed or descrbed as set forth in section 102 ofthis title, if the differences between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skil1 in the art to which said subject matter pertins. Patentability shall not be negatived by the manner in which the invention was made. 4. Claims 55-94 are rejected under 35 U.S,C, l03(a) as being unpatentable over Kleiman, US 5,959,945. Kleiman discloses distrbuting over the Internet from a central location a specified number of music plays or videos, e.g. co Is. 5-6, lines 59-21. Kleiman does not specifically disclose selecting a movie based upon the rental queue. Official Notice is taken that selecting a movielbook based upon a rental queue was common knowledge in the librar ar prior to Applicant's filing date. To have provided a video, i,e. movie, based upon a rental queue as recited in the claim language for Kleiman would have been obvious to one of ordinary skill in the ar in view of Official Notice. The motivation for having done such would have been to incorporate common knowledge and extremely well known item rental procedures with the system of Kleiman. It is noted that Applicant's intended use, e.g. for renting, do not positively recite claim limitations that are given great patentable weight. 5. Further pertnent references of interest are noted on the attached PTO-892. NFLlX0000657 Case 3:06-cv-02361-WHA . Document 101-14 ., Filed 12/06/2006 Page 6 of 6 Application/Control Number: 10/438,727 Page 4 Ar Unit: 3627 6. Applicant's Information Disclosure Statement (IDS) received July 1 1,2003 and March 8, 2004 have been reviewed. Note attachedPTO-1449. Applicant's IDS received October 6,2004 has been reviewed in par. Note attached PTO- I 449. The page 3 notation that other applications are related to the present Application is noted. However, it is incumbent upon Applicant to disclose which other Applications have substantially similar claim language. This duty is necessary in order to prevent double patenting situations, among other concerns. Conclusion 7. Any inquiry concerning this communcation or earlier communcations from the examiner should be directed to Andrew Joseph Rudy whose telephone nwnber is 703-308-7808. The examner can normally be reached on Tuesday thr Friday, 7:30 a.rn until 6 p.rn.. If attempts to reach the examiner by telephone are unsuccessful, the examiner's supervisor, Mr. Robert P. Olszewski can be reached on (703) 308-5183. The fax phone number for the organzation where this application or proceeding is assigned is 703-872-9306. Information regarding the status of an application may be obtained from the Patent Application Infonnation Retreval (pAIR) system. Status infonnation for published applications may be obtained from either Private PAI or Public PAIR. Status information for unpublished applications is available through Private PAI only. For more information ábout the PAI system, see http://pair-direct.uspto.gov. Should you have questions on access to the Private PAIR system, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). NFLlX0000658

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