Ex Parte Ando et alDownload PDFBoard of Patent Appeals and InterferencesJul 11, 201210608335 (B.P.A.I. Jul. 11, 2012) Copy Citation 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 Appeal 2010-004762 Application 10/608,335 3 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 4 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 Appeal 2010-004762 Application 10/608,335 5 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 Appeal 2010-004762 Application 10/608,335 6 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 Appeal 2010-004762 Application 10/608,335 7 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 Appeal 2010-004762 Application 10/608,335 8 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 Copy with citationCopy as parenthetical citation