Ex Parte Ando et al

Board of Patent Appeals and Interferences

Jul 11, 2012

10608335 (B.P.A.I. Jul. 11, 2012)

UNITED STATES PATENT AND TRADEMARK OFFICE
UNITED STATES DEPARTMENT OF COMMERCE
United States Patent and Trademark Office
Address: COMMISSIONER FOR PATENTS
P.O. Box 1450
Alexandria, Virginia 22313-1450
www.uspto.gov
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
10/608,335 06/30/2003 Haru Ando 500.42880X00 8770
86636 7590 07/11/2012
BRUNDIDGE & STANGER, P.C.
2318 MILL ROAD, SUITE 1020
ALEXANDRIA, VA 22314
EXAMINER
FRISBY, KESHA
ART UNIT PAPER NUMBER
3715
MAIL DATE DELIVERY MODE
07/11/2012 PAPER
Please find below and/or attached an Office communication concerning this application or proceeding.
The time period for reply, if any, is set in the attached communication.
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
________________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
________________

Ex parte HARU ANDO, TAKESHI HOSHINO and
NOBUHIKO MATSUKUMA
________________

Appeal 2010-004762
Application 10/608,335
Technology Center 3700
________________

Before JOHN C. KERINS, MICHAEL C. ASTORINO and
MICHAEL L. HOELTER, Administrative Patent Judges.

HOELTER, Administrative Patent Judge.

DECISION ON APPEAL
Appeal 2010-004762
Application 10/608,335

2
STATEMENT OF THE CASE
This is a decision on appeal, under 35 U.S.C. § 134(a), from a final
rejection of claims 1, 3, 7 and 9-17 (App. Br. 2). Claims 2, 4-6 and 8 have
previously been cancelled. We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.

The Claimed Subject Matter
The claimed subject matter relates to a learning program embodied on
a compute readable medium, executable in an information processing
apparatus, and operable to perform various steps. Independent claim 1 is
illustrative of the claims on appeal and is reproduced below (identifiers (a)
through (j) used in the decision have been added):
1. A learning condition judging program embodied on a
computer readable medium, the program executable in an
information processing apparatus, wherein the program is
operable on the information processing apparatus to perform the
steps of:
(a) starting a learning program in said information
processing apparatus,
(b) wherein the information processing apparatus is
connected through an information acquiring means to a near
infrared measuring device, and is connected to a recording
means, an input means and a display means;
(c) displaying learning contents within a predetermined
window on said display means;
(d) continuously acquiring, as said learning program
progresses, measurement information of a blood flow rate in a
brain of a user of said information processing apparatus, said
measurement information being obtained from said near
infrared measuring device through said information acquiring
means;
(e) acquiring input information and operation information
given by said user to said information processing apparatus
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through said input means, wherein the input information and
the operation information indicate progress of said learning
program;
(f) acquiring audio or video information of said user of said
information processing apparatus so as to obtain attention
information of said user through at least one of a microphone
and a camera connected to said information processing
apparatus;
(g) analyzing a rate of change in hemoglobin concentration
from said blood flow rate;
(h) judging, when an event occurs within the predetermined
window, when a facial image of the user is recognized, or when
said audio information includes predetermined audio
information, whether or not a degree of concentration of said
user to said learning program is higher than a predetermined
degree by using said measurement information of said blood
flow rate and said attention information to determine that the
user is in concentration time;
(i) recording, when said degree of concentration of said user
to said learning program is higher than said predetermined
degree, said degree of concentration of the user and said
attention information of the user with said progress of said
learning program in said recording means; and
(j) displaying, when said degree of concentration of said
user to said learning program is not higher than said
predetermined degree, information that the user is not in
concentration time.

References Relied on by the Examiner
Ho US 5,944,530 Aug. 31, 1999
Zaltman US 6,315,569 B1 Nov. 13, 2001
Freer US 6,402,520 B1 Jun. 11, 2002
Shpiro US 2002/0150869 A1 Oct. 17, 2002
Obrador US 6,585,521 B1 Jul. 1, 2003
Atsushi1 JP 009-149894 Jun. 10, 1997

1 An English language translation of this reference, performed by a computer
and dated December 18, 2006, is of record in this application
Appeal 2010-004762
Application 10/608,335

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The Rejections on Appeal
1. Claims 1, 3, 7, 9-14, 16 and 17 are rejected under 35 U.S.C. § 103(a)
as being unpatentable over Obrador, Freer, Ho, Atsushi and Zaltman (Ans.
3).
2. Claim 15 is rejected under 35 U.S.C. § 103(a) as being unpatentable
over Obrador, Freer, Ho, Atsushi, Zaltman and Shpiro (Ans. 16).

ANALYSIS
Appellants argue claims 1, 3, 7, 9-14, 16 and 17 together (App. Br. 9).
We select independent claim 1 for review, with claims 3, 7, 9-14, 16 and 17
standing or falling with claim 1 (see 37 C.F.R. § 41.37(c)(1)(vii) (2011)).
Appellants also do not separately argue dependent claim 15 and instead state
that “claim 15 is allowable for at least the same reasons previously discussed
regarding independent claim 1” (App. Br. 21). Accordingly, all claims stand
or fall with claim 1.
The Examiner combines the teachings of Obrador, Freer, Ho, Atsushi
and Zaltman and finds that, in combination, they teach the steps of claim 1
(Ans. 3-7). The Examiner identifies which of the steps of claim 1 that
Obrador discloses and that which Obrador does not disclose (Ans. 3-4). The
Examiner then identifies those steps missing from Obrador that are taught in
Freer, stating that it would have been obvious to incorporate these steps into
Obrador “in order to increase the user’s focus” (Ans. 5). The Examiner next
identifies that which Ho teaches stating that it would have been obvious to
incorporate Ho’s teachings “into Obrado/Freer in order to determine the
student’s understanding level on the materials just presented to the student”
(Ans. 6). The Examiner thereafter identifies those remaining steps missing
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from Obrador that Atsushi and Zaltman teach (Ans. 7). The Examiner
provides a reason to combine the teachings of Atsushi with Obrador, Freer
and Ho (Ans. 7) and the Examiner provides a separate reason to combine the
teachings of Zaltman with Obrador, Freer, Ho and Atsushi (Ans. 7).
More specifically, Zaltman teaches “measuring the concentration of
blood flow to the brain while an individual performs an isolated cognitive
task” and that this “provides a means of measuring the relative processing
contribution of each subregion [of the brain] to the task.” Col. 11, ll. 44-48.
The Examiner correctly finds this teaching corresponds to the step h).
Appellants initially dispute that portion of step (h) pertaining to the
determination “that the user is in concentration time” (App. Br. 10, see also
Reply Br. 3). The Examiner found this functional limitation as being taught
by Zaltman (Ans. 18). In essence, Appellants contend that the Examiner has
not established that Zaltman discloses this functional limitation (App. Br.
11).
This argument by Appellants is misplaced and rejected. Where the
Patent and Trademark Office has reason to believe that a functional feature
in the claimed subject matter may in fact be an inherent characteristic of the
prior art, it may require the patent applicant to prove that the subject matter
shown to be in the prior art does not possess the characteristic relied on (In
re Swinehart, 439 F.2d 210, 213 (CCPA 1971)). Here, the Examiner
references that portion of Zaltman which teaches this limitation finding that
when there is increased relative processing in the brain due to the cognitive
task performed, “a determination can also be made” (Ans. 18 referencing
Zaltman 11:41-58). Regarding the requirement of judging whether a degree
of concentration of a user “is higher than a predetermined degree,” the
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Examiner finds that “[a]ny determination of an increase has to come from a
baseline” and the phrase “predetermined degree” is interpreted by the
Examiner, in its broadest sense, as a baseline (Ans. 18).
As the Examiner has established a reasonable belief that a functional
feature in the claimed subject matter may in fact be an inherent characteristic
of the prior art, the burden of going forward is properly placed on
Appellants. Appellants’ statement that the Examiner has not shown where
Zaltman teaches or suggests the same function and result is misplaced (App.
Br. 11, Reply Br. 3). Appellants do not put forth any evidence or articulate
any reason to establish that the claimed determination is incapable of being
made based on the teachings of Zaltman nor do Appellants persuasively
explain how, upon taking blood flow measurements, Zaltman does not teach
or suggest a determination “as to whether or not a degree of concentration of
the user to the learning program is higher than a predetermined degree”
(App. Br. 11, see also Reply Br. 4).
Appellants also argue that step (i) requires recording “when said
degree of concentration of said user to said learning program is higher than
said predetermined degree” (App. Br. 11, Reply Br. 4). Appellants contend
that “Freer appears to automatically record data without any conditions for
recording” (App. Br. 12, Reply Br. 5). The Examiner provides additional
references where Freer discusses educational exercises and states that “since
these educational exercises are recorded in its entirety it encompasses the
claimed limitation” (Ans. 19). Appellants have not explained how Freer’s
recording of the entirety of such an exercise fails to teach recording when
the user’s concentration is higher than a predetermined degree. Appellants
do not explain the criticality of recording partial data as contrasted with all
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the data. Claim 1 is not limited to solely recording only when the degree of
concentration is higher than a predetermined degree. Accordingly, we do
not find fault with the Examiner’s rationale nor do we find Appellants’
contention persuasive.
Appellants next address step (j) which requires displaying information
when the user’s concentration drops below a predetermined level (App. Br.
12, Reply Br. 6). Appellants contend that “there is no teaching or suggestion
in Freer of where ‘Focus to continue’ is displayed” when concentration
drops (App. Br. 13). Freer explicitly states that when a loss of focus is
detected, the screen displays “Focus to continue” (Freer 16:28-32).
Appellants also contend that “the manner of detecting a loss of focus in
Freer is not the same as detecting when the degree of concentration of the
user” does not exceed a certain level (Reply Br. 6-7). We note that step (j)
of claim 1 does not specify a particular manner of detecting a loss of
concentration. Appellants’ contentions are not persuasive.
Appellants also contend that “Atsushi teaches away” from being
combined with the other cited art regarding step (f) (App. Br. 13).
Appellants rely on Atsushi’s Paragraph [0001] and drawings for support, but
this paragraph and these drawings do not criticize, discredit or discourage
the use of conventional input means (App. Br. 14, 15; Ans. 22). Appellants’
contention is not persuasive.
Appellants’ remaining arguments are directed to the Examiner relying
upon improper hindsight reasoning and/or not providing sufficient
motivation to combine the references (App. Br. 15-21, Reply Br. 8). The
Examiner’s Grounds of Rejection and Response to Arguments are replete
with specific citations to specific references for specific teachings. The
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Examiner has also presented numerous reasons for combining the various
references. Appellants have not shown where the Examiner’s reasons are
incorrect and we are not persuaded that the Examiner “gleaned” such
knowledge “only from applicant’s disclosure” (App. Br. 17, 18, 20,
see also Reply Br. 8). In essence, we are not persuaded that the Examiner’s
reasons to combine lack articulated reasoning with rational underpinning to
support the legal conclusion of obviousness.

DECISION
The rejection of claims 1, 3, 7 and 9-17 is affirmed.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a).

AFFIRMED

JRG