Ex Parte Ashbrook

Patent Trials and Appeals Board

Mar 27, 2019

13630898 - (D) (P.T.A.B. Mar. 27, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/630,898 09/28/2012
10949 7590 03/29/2019
Nokia Corporation and Alston & Bird LLP
c/o Alston & Bird LLP
Bank of America Plaza, 101 South Tryon Street
Suite 4000
Charlotte, NC 28280-4000
FIRST NAMED INVENTOR
Daniel L. Ashbrook
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
042933/425066 6911
EXAMINER
PETERS, LISA E
ART UNIT PAPER NUMBER
2862
NOTIFICATION DATE DELIVERY MODE
03/29/2019 ELECTRONIC
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.
Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the
following e-mail address(es):
usptomail@alston.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte DANIELL. ASHBROOK
Appeal 2018-003812
Application 13/630,898
Technology Center 2800
Before ADRIENE LEPIANE HANLON, JENNIFER R. GUPTA, and
SHELDON M. McGEE, Administrative Patent Judges.
GUPTA, Administrative Patent Judge.
DECISION ON APPEAL 1
Appellant2 appeals under 35 U.S.C. § 134(a) from the Examiner's
final decision rejecting claims 1-20 and 24--29. We have jurisdiction under
35 U.S.C. § 6(b). We AFFIRM-IN-PART.
1 In this Decision, we refer to the Specification filed September 28, 2012
("Spec."), the Final Office Action dated April 14, 2017 ("Final Act."), the
Appeal Brief filed November 27, 2017 ("Appeal Br."), the Examiner's
Answer dated December 26, 2017 ("Ans."), and the Reply Brief filed
February 26, 2018 ("Reply Br.").
2 Appellant is the Applicant, Nokia Corporation, listed in the Application
Data Sheet filed September 28, 2012. However, according to the USPTO's
assignment records, as of January 11, 2017, the assignee of the present
application is Nokia Technologies Oy, which is identified as the real party in
interest. Appeal Br. 2.
Appeal 2018-003812
Application 13/630,898
The subject matter on appeal relates to a method (independent
claim 1 ), an apparatus (independent claim 8), and a computer program
(independent claim 15) for determining the emotional response of
individuals within a group. Spec. ,r,r 1, 4. Independent claim 1, reproduced
below from the Claims Appendix of the Appeal Brief with emphasis to
highlight key disputed limitations, is illustrative of the claims on appeal.
1. A method comprising:
receiving information identifying an emotional response
and an attentional focus of each of a plurality of individuals;
determining a first relationship between a first threshold
and a number of the individuals with an attentional focus 3
having a predefined association with a location;
determining that the emotional response of an individual
satisfies a predefined condition in an instance in which the
emotional response is within a range that includes a plurality of
related emotional states;
determining, with a processor, a second relationship
between a second threshold and a number of individuals with
an emotional response that satisfies the predefined condition4;
and
causing an action to be performed based upon both the
first and second relationships, wherein causing the action to be
performed comprises capturing an image of one or more of the
individuals following determination of the first and second
relationships and only in an instance in which the first and
3 Appellant's Specification discloses that "[t]he attentional focus of an
individual is the object, location or the like upon which the individual is
focusing their attention." Spec. ,r 24.
4 Appellant's Specification discloses that "the predefined condition may be
the emotional state of being happy with individuals having an emotional
response of smiling or laughing being considered to satisfy the predefined
condition, while users who have an emotional response of grimacing fail to
satisfy the predefined condition. Spec. ,r 53.
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Application 13/630,898
second relationships that have been determined indicate that
the image is to be captured.
Appeal Br. 14 (Claims App.).
As Appellant acknowledges, independent claim 8 and independent
claim 15, which are directed to an apparatus and a computer program,
respectively, include similar recitations to the disputed limitations
highlighted in independent claim 1 above. See Appeal Br. 6.
DISCUSSION
The Examiner maintains the rejection of claims 1--4, 6-11, 13-18, 205
and 27-29 under pre-AIA 35 U.S.C. § I03(a) over Staudacher et al.
(US 2012/0105662 Al, published May 3, 2012) ("Staudacher") in view of
Marci et al. (US 2010/0004977 Al, published January 7, 2010) ("Marci").
Ans. 2. The Examiner also maintains the rejection of claims 5, 12, 19, and
24--26 under pre-AIA 35 U.S.C. § I03(a) over Staudacher, Marci, and
Norfolk et al. (US 2008/0126179 Al, published May 29, 2008) ("Norfolk").
Id.
Appellant presents separate patentability arguments regarding
claims 1 and 24--26. See Appeal Br. 5-13. We select claim 1 as
representative of claims 2-20, and 27-29, and will address the separate
arguments presented for claims 24--26 below.
After review of the cited evidence in light of the Appellant's and the
Examiner's opposing positions, we determine that the Appellant has not
5 Claim 20 is not listed in the statement of rejection in the Final Action
(Final Act. 3); however, claim 20 is included in the body of the rejection (id.
at 7). Thus, we consider the omission of claim 20 in the statement of
rejection as a typographical error, and refer to the rejection herein as
including claim 20.
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identified reversible error in the Examiner's rejections except where
otherwise explained below. Thus, where we affirm the Examiner's
rejections, we do so for the reasons expressed in the Final Office Action, the
Answer, and below.
Claims 1-20 and 27-29
Appellant argues that Staudacher fails to teach or suggest:
(i) "determining a first relationship between a first threshold and a number
of individuals with an attentional focus having a predefined association with
a location," (ii) "determining ... a second relationship between a second
threshold and a number of individuals with an emotional response that
satisfies [a] predefined condition," and (iii) "causing an action to be
performed based upon the first and second relationships ... by capturing an
image of one or more of the individuals following determination of the first
and second relationships and only in an instance in which the first and
second relationships have been determined to indicate that the image is to be
captured," as recited in claim 1. Id. at 7-8, 9.
Appellant argues that in contrast to claim 1, Staudacher combines a
number of different pose metrics into a single pose value and then compares
that single pose value with a threshold. Id. at 8. Thus, Staudacher describes
a more aggregated approach in which a composite pose value representative
of the plurality of individual pose metrics is compared with a threshold as
opposed to the separate comparisons of the plurality of individual pose
metrics with respective thresholds. Id. According to Appellant, these two
approaches, namely, the approach involving a composite pose value, and the
more individualized determination set forth by independent Claim 1 can
provide different results. Id.
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Appellant's arguments are not persuasive of reversible error.
Staudacher teaches a camera system (50) that includes a pose analyzer (56)
that analyzes image data according to pose metrics (16) associated with one
or more human subjects. Staudacher ,r 18. The pose analyzer (56) includes
a pose metric calculator ( 18) that generates the pose metric signal MET to
have a value that is computed based on the pose metrics ( 16) and associated
metric weights (58). Id. ,r 19. Some examples of pose metrics (16) include
detecting the number of subjects that are smiling, facing the camera, or have
their eyes open. Id. ,r 9, 22. As the Examiner finds, Staudacher teaches the
metric weights (58) can be programmable weights that determine "separate
and individual contributions of the different pose metrics 16." Ans. 3 ( citing
Staudacher ,r 20). The Examiner also finds that Staudacher teaches that
"[ w ]hen a scene contains multiple subjects, the pose analyzer can generate
the value of the pose metric signal MET according to a percentage of the
multiple subjects that satisfy each of the pose metrics 16"----(i.e.,
individually determining a relationship between a threshold and a number of
individuals satisfying one or more pose metrics ( e.g., facing the camera
(attentional focus) and/or smiling (emotional response)). Id. at 3--4 (citing
Staudacher ,r 22). Based on Staudacher's teachings, we are not persuaded of
reversible error in the Examiner's reasonable finding that one of ordinary
skill in the art would understand that Staudacher teaches "determining a first
relationship between a first threshold and a number of individuals with an
attentional focus having a predefined association with a location" and also
"determining ... a second relationship between a second threshold and a
number of individuals with an emotional response that satisfies [a]
predefined condition." We note that although Staudacher does not use the
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same language as the claims ("threshold"), there is no requirement that the
prior art contain a description of the subject matter of the appealed claim in
ipsissimis verbis. See In re Gleave, 560 F.3d 1331, 1334 (Fed. Cir. 2009) (a
reference need not satisfy an ipsissimis verbis test).
In addition, as the Examiner finds, Staudacher teaches capturing an
image based on the pose metric signal MET, which as described above is
generated based on the pose metrics (16). Ans. 3 ( citing Staudacher ,r 23);
see also Final Act. 4 ( citing Staudacher ,r 25) ("the camera system 50 can
capture the photograph automatically upon the pose metric signal MET
exceeding the predetermined threshold"). Based on those teachings, we are
not persuaded of reversible error in the Examiner's reasonable finding that
Staudacher teaches "causing an action to be performed based upon both the
first and second relationships, wherein causing the action to be performed
comprises capturing an image of one or more of the individuals following
determination of the first and second relationships and only in an instance in
which the first and second relationships that have been determined indicate
that the image is to be captured." We also note that as the Examiner
explains, Appellant's claim language does not exclude "additional
processing ... to derive a single, combined pose metric signal used to
determine when to capture the image." Ans. 4.
Appellant argues that Marci fails to teach or suggest "determining that
the emotional response of an individual satisfies a predefined condition in an
instance in which the emotional response is within a range that includes a
plurality of related emotional states." Appeal Br. 10 ( emphasis added).
Appellant's argument is not persuasive of reversible error. As the
Examiner finds, Marci teaches a method of exposing an audience to a
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presentation ( a sensory stimulus) and evaluating the audience's experience
by measuring the physically, biologically, physiologically, and behaviorally
based responses ( collectively referred to as "biometric responses," which
include facial expressions (Marci ,r,r 14, 31)) of the individual members of
the audience to the presentation, and determining a measure of the level and
pattern of intensity of the responses. Ans. 7 ( citing Marci ,r 5); Final
Act. 5 ( citing Marci ,r 51 ("The measure of intensity can include measuring
the change, from a base level, of a biologically based response to the
stimulus.")); see also Marci ,r 30 (teaching the measuring of intensity levels
or amplitude of responses). Thus, we are not persuaded by Appellant's
argument that the Examiner erred in reasonably finding that one of ordinary
skill in the art would understand that Marci teaches "determining that the
emotional response of an individual satisfies a predefined condition in an
instance in which the emotional response is within a range that includes a
plurality of related emotional states." Appeal. Br. 10.
Appellant does not dispute that it would have been obvious to
combine Staudacher and Marci as set forth in the rejection. Compare
Appeal Br. 5-13, with Final Act. 5.
Accordingly, based on the preponderance of the evidence, we sustain
the rejection of claims 1-20 and 27-29.
Claims 24-26
Claim 24 depends from independent claim 1 and recites "causing
performance of an action comprises causing performance of an action that
interacts with some, but not all of the individuals so as to alter the attentional
focus of a subset of the individuals." Appeal Br. 19 (Claims App.).
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Claim 25, which depends from independent claim 8, and claim 26,
which depends from independent claim 15, include similar recitations to
claim 24.
The Examiner finds Norfolk teaches the recitations of claims 24--26.
Final Act. 9 (citing Norfolk ,r,r 12, 92, 99, 102).
Appellant argues that Norfolk fails to teach or suggest interacting with
some, but not all of the individuals, and instead suggests that any interaction
is directed to all of the individuals, such as the entire audience. Appeal
Br. 12.
As Appellant points out in the Reply Brief, the Examiner does not
respond to Appellant's arguments regarding claims 24--26. Reply Br. 4--5.
We have reviewed Norfolk's disclosure cited by the Examiner regarding
claims 24--26 (Final Act. 9), but do not find that it factually supports the
Examiner's finding that Norfolk teaches "causing performance of an action
comprises causing performance of an action that interacts with some, but not
all of the individuals so as to alter the attentional focus of a subset of the
individuals." Accordingly, we do not sustain the rejection of claims 24--26.
DECISION
The rejection of claims 1--4, 6-11, 13-18, 20 and 27-29 under pre-
AIA 35 U.S.C. § 103(a) over Staudacher in view of Marci is affirmed.
The rejection of claims 5, 12, 19, and 24--26 under pre-AIA 35 U.S.C.
§ 103(a) over Staudacher, Marci, and Norfolk is affirmed as to claims 5, 12,
and 19, and reversed as to claims 24--26.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a).
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AFFIRMED-IN-PART
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