Ex Parte KlingbergDownload PDFPatent Trial and Appeal BoardOct 25, 201311325289 (P.T.A.B. Oct. 25, 2013) Copy Citation UNITED STATES PATENT AND TRADEMARK OFFICE ____________________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________________ Ex parte TORKEL KLINGBERG ____________________ Appeal 2011-008821 Application 11/325,289 Technology Center 3700 ____________________ Before MICHAEL C. ASTORINO, MICHELLE R. OSINSKI, and HYUN J. JUNG, Administrative Patent Judges. OSINSKI, Administrative Patent Judge. DECISION ON APPEAL Appeal 2011-008821 Application 11/325,289 2 STATEMENT OF THE CASE Appellant1 appeals under 35 U.S.C. § 134(a) from a final rejection of claims 53-56, 58, and 60-62. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. CLAIMED SUBJECT MATTER The sole independent claim on appeal is reproduced below and is illustrative of the appealed subject matter. 53. A method for training a working memory of a user, comprising: providing a computer; displaying a first sequence of stimuli of a training session on a display of the computer; the computer requesting a user to remember the first sequence of stimuli; the computer establishing a delay of a predetermined time of between 0.1 seconds to 10 seconds during which the first sequence of stimuli is not visible to the user; the computer ignoring any answer entered by the user during the delay in which the first sequence of stimuli is not visible to the user; the user entering a first answer sequence into the computer, the computer accepting the first answer sequence only when entered by the user after an expiration of the delay in response to the request to remember the first sequence of stimuli displayed, upon acceptance and storage of the first answer sequence, the computer determining whether the first answer sequence is correct or incorrect and generating a second sequence of stimuli when the first answer sequence is correct and a second different sequence of stimuli when the first answer sequence is incorrect, and 1 Appellant identifies the real party in interest as Cogmed Systems AB. App. Br. 1. Appeal 2011-008821 Application 11/325,289 3 the computer displaying the second sequence of stimuli or second different sequence of stimuli on the display and requesting the user to respond thereto. REJECTIONS Appellant seeks review of the following rejections: (1) the rejection of claims 53 and 54 under 35 U.S.C. § 103(a) as unpatentable over Buschke ’636 (US 4,770,636, iss. Sep. 13, 1988) and Keller (US 5,289,389, iss. Feb. 22, 1994) (Ans. 3-5); (2) the rejection of claims 55, 56, 58, 60, and 61 under 35 U.S.C. § 103(a) as unpatentable over Buschke ’636, Keller, and Wood (US 2003/0129576 A1, pub. Jul. 10, 2003) (Ans. 6-8); and (3) the rejection of claim 62 under 35 U.S.C. § 103(a) as unpatentable over Buschke ’636, Keller, and Buschke ’058 (US 6,689,058 B2, iss. Feb. 10, 2004) (Ans. 8). ANALYSIS Rejection (1) The Examiner found that Buschke ’636 teaches the claimed limitation of “requesting the user to remember the first sequence of stimuli” because of the “Copy” step of Figure 3 (Ans. 4) or alternatively because the user is asked “to repeat the number to show his/her . . . immediate recall of the fact in his/her memory (see col. [7, ll. 6-9, 48-52 and fig. 3 relating to] ‘immediate recall’)” (id. at 9). Appellant’s contention that Buschke ’636’s copying step 60 does not teach requesting the user to remember the first sequence of stimuli (App. Br. 6-8) is unpersuasive because it does not explain why Buschke ’636’s presentation of visual stimuli (i.e., a series of Appeal 2011-008821 Application 11/325,289 4 seven digit numbers) prior to their removal from the screen during immediate recall step 62 does not meet the claim language. See Ans. 9-10 (“The user’s ability to memorize (or to remember) can[]not be tested if the user[] is not asked to remember the stimulus.”). The Examiner also found that Buschke ’636 teaches the claimed limitation of “ignoring any answer entered by the user during the delay in which the first sequence of stimuli is not visible to the user” because of the “‘interference’” described at column 7, lines 55-60 (Ans. 4) or alternatively because “the user will not be able to enter any answer before spaces are shown to the user[,] or rather user’s entry is ignored during the time between the cleared screen and display of the spaces” (id. (citing Buschke ’636, col. 7, ll. 50-55)). Appellant’s contention that the acceptance of answers during interference step 64 means that the computer does not ignore answers during the delay (App. Br. 9, 11) is unpersuasive because it does not address the Examiner’s alternative position in which the delay is the 1-9 second delay of immediate recall step 62. See Ans. 4. Accepting answers during interference step 64 may be after the 1-9 second delay of immediate recall step 62. The Examiner further found that Buschke ’636 teaches “accepting a first answer sequence only when entered by the user after an expiration of the delay” since “spaces are shown.” Ans. 4 (citing Buschke ’636, col. 7, ll. 50-55). See id. at col. 7, ll. 48-51 (“[T]he screen is cleared and . . . after a specified number of seconds (1-9), . . . spaces are shown on the screen for immediate recall.”). Appellant contends that “Buschke [’636] clearly accepts answers before the expiration of the delay[,] i.e.[,] both during the copying step 60 and the immediate recall step 62.” Reply Br. 4; see also Appeal 2011-008821 Application 11/325,289 5 App. Br. 12. First, Appellant’s argument that accepting answers during the immediate recall step 62 results in acceptance of answers before the expiration of delay does not address the Examiner’s finding in which the delay is the 1-9 seconds of the immediate recall step 62 where answers are only accepted after the 1-9 seconds has elapsed. See Ans. 4 (citing Buschke ’636, col. 7, ll. 45-55). Second, Appellant’s argument that accepting answers during the copying step 60 results in acceptance of answers before the expiration of delay is also not persuasive. Even though the same number sequence could be entered into Buschke ’636’s system during copying step 60 and immediate recall step 62 as explained by Appellant, copying step 60 occurs before, and is immaterial to, what occurs during the claimed method steps. Buschke ’636 does not request a user to remember a sequence of stimuli until after the user’s comprehension of the stimuli is verified during copying step 60. Without successful verification of the user’s comprehension of the stimuli, it would be unclear if error during immediate recall step 62 was due to a user’s failure to comprehend or due to a deficit in working memory. See Buschke ’636, col. 6, ll. 42-43, 45-47. Any number of other steps (including, but not limited to, Buschke ’636’s copying step 60) could occur before or after the claimed method steps and still meet the claimed method due to the use of the transitional phrase “comprising” in the claims. See Fin. Rej. 8. The Examiner found that Buschke ’636 failed to teach all of the claim limitations and relied on Keller to cure the deficiencies of Buschke ’636. Ans. 4-5. The Examiner concluded that it would have been obvious to generate a second sequence of stimuli when the first answer is correct and to generate a different second sequence of stimuli when the first answer is Appeal 2011-008821 Application 11/325,289 6 incorrect “as taught by Keller, in order to increase the reliability of the test result.” Ans. 5 (citing Keller, col. 3, ll. 55-60); see also Keller, col. 2, l. 63 – col. 3, l. 1 (explaining that the “correct five digit number . . . will be displayed on the LCD” if the user’s answer sequence is correct and that “an error code, such as a series of zeros” is displayed on the LCD if the user’s answer sequence is incorrect). Appellant contends that the Examiner’s reasoning for modifying Buschke ’636 based on the teachings of Keller does not rise to the level of having a rational underpinning to support the legal conclusion of obviousness and instead is conclusory, “merely provide[s] a benefit,” and relies on impermissible hindsight. App. Br. 14-15; Reply Br. 8-10. More particularly, Appellant contends that it is unclear how modifying Buschke ’636 based on Keller’s teaching of an error message improves the reliability of Buschke ’636’s invention. Reply Br. 9 (“it is submitted that Keller’s error code (col. 3, lines 55-60) has no [e]ffect on the test reliability of Buschke [’636]’s system or at least the Examiner has failed to explain how this asserted benefit would occur”). The Examiner responded that Keller teaches “that it would have been known at the time of the invention to repeat the test with a different sequence of stimulus” (Ans. 13 (citing Keller, col. 3, ll. 40-60)) and that “the result of repeating the test would also be predictable . . . and would have been foreseeable in view of the Buschke [’636] reference” (Ans. 13-14 (citing Buschke ’636, col. 8, ll. 45-50)). As explained by the Examiner, both Buschke ’636 and Keller support that repeating the test after receipt of an error can provide a more complete assessment of memory and learning. See, e.g., Ans. 13 (citing Buschke ’636, col. 8, ll. 45-50; col. 13, ll. 10-13; and Appeal 2011-008821 Application 11/325,289 7 Table III) (“the result of several delayed memory test[s] are averaged together to form a more reliable result[]”) and Keller, col. 3, ll. 40-60 (after receipt of an error code, “the operator need only press any key at step 70 to repeat the response speed and accuracy test”). Appellant does not offer evidence or reasoning as to why it would not have been predictable to combine the teachings of Buschke ’636 and Keller, and thus, their contention that the Examiner’s articulated reasoning lacks rational underpinnings is unpersuasive. See KSR Int’l Co. v. Teleflex, Inc., 550 U.S. 398, 416 (2007) (“The combination of familiar elements according to known methods is likely to be obvious when it does no more than yield predictable results.”). For the foregoing reasons, Appellant has failed to show error by the Examiner in concluding that the subject matter of independent claim 53 is unpatentable over Buschke ’636 and Keller, and we sustain the rejection of claim 53 under 35 U.S.C. § 103(a) as unpatentable over Buschke ’636 and Keller. As Appellant does not present separate arguments for claim 54, we likewise sustain the rejection of claim 54 under 35 U.S.C. § 103(a) as unpatentable over Buschke ’636 and Keller.2 2 Appellant’s reference to “claim 54 also recit[ing] additional characteristics that are not found in the cited art” (App. Br. 16) is not considered to constitute a separate argument for patentability pursuant to 37 C.F.R. § 41.37(c)(1)(vii)(2011). See In re Lovin, 652 F.3d 1349, 1357 (Fed. Cir. 2011) (holding that the Board had reasonably interpreted 37 C.F.R. § 41.37(c)(1)(vii) as requiring “more substantive arguments in an appeal brief than a mere recitation of the claim elements and a naked assertion that the corresponding elements were not found in the prior art”). Appeal 2011-008821 Application 11/325,289 8 Rejection (2) Appellant’s argument that the Examiner has failed to articulate reasoning with rational underpinning (App. Br. 16-17) lacks objective evidence or cogent reasoning in response to the Examiner’s particular findings and conclusion, and as such, is unpersuasive. Accordingly, Appellant has failed to show error by the Examiner in concluding that the subject matter of claims 55, 56, 58, 60, and 61 is unpatentable over Buschke ’636, Keller, and Wood, and we sustain the rejection of claims 55, 56, 58, 60, and 61 under 35 U.S.C. § 103(a) as unpatentable over Buschke ’636, Keller, and Wood. Rejection (3) Appellant’s argument that the Examiner has failed to articulate reasoning with rational underpinning (App. Br. 17) lacks objective evidence or cogent reasoning in response to the Examiner’s particular findings and conclusion, and as such, is unpersuasive. Accordingly, Appellant has failed to show error by the Examiner in concluding that the subject matter of claim 62 is unpatentable over Buschke ’636, Keller, and Buschke ’058, and we sustain the rejection of claim 62 under 35 U.S.C. § 103(a) as unpatentable over Buschke ’636, Keller, and Wood. DECISION The Examiner’s rejections of claims 53-56, 58, and 60-62 under 35 U.S.C. § 103(a) are 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)(1)(iv). Appeal 2011-008821 Application 11/325,289 9 AFFIRMED mls Copy with citationCopy as parenthetical citation