Ex Parte LI et alDownload PDFPatent Trial and Appeal BoardDec 14, 201714125157 (P.T.A.B. Dec. 14, 2017) 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. 14/125,157 12/10/2013 Wenlong Li P53394US 1758 88032 7590 12/18/2017 TnrHanTPT aw T T C EXAMINER 12501 Prosperity Drive, Suite 401 Silver Spring, MD 20904 CHANG, KENT WU ART UNIT PAPER NUMBER 2624 NOTIFICATION DATE DELIVERY MODE 12/18/2017 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): info@jordaniplaw.com admin @jordaniplaw.com inteldocs_docketing @ cpaglobal. com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte WENLONG LI, THOMAS SACHSON, and YUNZHEN WANG Appeal 2017-007372 Application 14/125,157 Technology Center 2600 Before NATHAN A. ENGELS, JAMES W. DEJMEK, and MICHAEL M. BARRY, Administrative Patent Judges. BARRY, Administrative Patent Judge. DECISION ON APPEAL Appellants1 appeal under 35 U.S.C. § 134(a) from a Final Rejection of claims 18—42, which are all of the pending claims. Claims 1-17 have been canceled. App. Br. 6. We have jurisdiction under 35 U.S.C. § 6(b). We affirm-in-part. 1 Appellants identify Intel Corp. as the real party in interest. App. Br. 3. Appeal 2017-007372 Application 14/125,157 Introduction Appellants describe the invention as “relating] to animating an avatar based on facial motion data, such as user facial motion data corresponding to one or more facial gestures observed when a user emulates a source object.” Spec. ^ 1. Claim 18 is exemplary: 18. An apparatus to animate an avatar, comprising: an image capture device; a script module to present script data to a user that is to include text taken from speech made in a performance by a source object in media content; a motion module to extract user facial motion data that corresponds to one or more user facial gestures observed by the image capture device when the user is to utilize the script data to verbalize the text taken from the speech made in the performance by the source object; and an avatar module to animate an avatar based on the user facial motion data. App. Br. 25 (Claims App’x); see also Spec. 10-23, Figs. 1A-B. Rejections and References 1. Claims 18, 20-24, 26-35, and 37-42 stand rejected under 35 U.S.C. § 103 as unpatentable over Jones et al. (US 2012/0106796 Al; pub. May 3, 2012, hereinafter “Jones”) and Poggio et al. (US 6,250,928 Bl; iss. June 26, 2001, hereinafter “Poggio”). Final Act. 2-13. 2. Claims 19, 25, and 36 stand rejected under 35 U.S.C. § 103 as unpatentable over Jones, Poggio, and Wang et al. (US 2010/0082345 Al; pub. Apr. 1, 2010, hereinafter “Wang”). Id. at 13-14. 2 Appeal 2017-007372 Application 14/125,157 ISSUES Based on Appellants’ arguments, the issues are whether the Examiner errs in: (a) finding the combination of Jones and Poggio teaches or suggests “a script module to present script data to a user that is to include text taken from speech made in a performance by a source object in media content,” as recited in independent claim 18, and as recited commensurately in independent claims 23 and 34 (App. Br. 11-13); (b) finding the combination of Jones and Poggio teaches or suggests “a motion module to extract user facial motion data that corresponds to one or more user facial gestures observed by the image capture device when the user is to utilize the script data to verbalize the text taken from the speech made in the performance by the source object,” as recited in independent claim 18, and as recited commensurately in independent claims 23 and 34 (id. at 13-14); (c) combining Jones and Poggio for the rejections of independent claims 18, 23, and 34 because (1) the combination would lead away from the claimed invention, (2) modifying Jones as necessary based on the teachings of Poggio would require a substantial reconstruction and redesign and a change in the basic principles of operation of Jones, or (3) the Examiner failed to provide an articulated reasoning with rational underpinning (id. at 18-23); (d) finding the combination of Jones and Poggio teaches or suggests “emulat[ing] a corresponding source object when the corresponding source object in the media content speaks in the performance,” as recited in claim 22 (id. at 14-16); (e) finding the combination of Jones and Poggio teaches or suggests “wherein the user audio is to be generated by the verbalization of the text by the user,” as recited in claim 26 and commensurately recited in claim 37 (id. at 16-17); 3 Appeal 2017-007372 Application 14/125,157 (f) finding the combination of Jones and Poggio teaches or suggests “to extract the source facial motion data from media content that includes one or more of a music video or an animated movie in which the user is absent, wherein the source object is to include one or more of a performer or a character in the media content,” as recited in claim 28 {id. at 17-18). ANALYSIS Claims 18, 23, and 34 Claim Interpretation —Non-Functional Descriptive Material As an initial matter, we interpret the phrases “taken from speech made in a performance by a source object in media content” and “taken from the speech made in the performance by the source object,” as recited in claim 18, and as commensurately recited in claims 23 and 34. When a claim element merely describes the nature of information, it may be directed to nonfunctional descriptive material, which does not lend patentability to an otherwise unpatentable claim. See In re DiStefano, 808 F.3d 845, 848-51 (Fed. Cir. 2015); Ex parte Nehls, 88 USPQ2d 1883, 1889 (BPAI 2008) (precedential) (holding “the nature of the information being manipulated does not lend patentability to an otherwise unpatentable computer- implemented product or process”); see also Ex parte Curry, 84 USPQ2d 1272, 1274 (BPAI 2005) (informative) (finding the fact that data was “wellness-related” did not functionally affect other claim requirements and, thus, constituted nonfunctional descriptive material that could not render nonobvious an otherwise obvious claim), affd, No. 06-1003 (Fed. Cir. 2006) (Rule 36). Claim 18 recites that the source of text of the script module’s script data is “taken from speech made in a performance made by a source object in media content” without any requirement that functionally relates the 4 Appeal 2017-007372 Application 14/125,157 source of the script data to the other requirements of the script module. The Specification, which discloses that “script data [] may include performance information which may direct the actions of the user [] in a karaoke fashion” (T| 16) and that a user “may, in one example, use the script data [] to emulate the performance of the source object” (]f 22), does not disclose that the source of the script data must be functionally related to the script module.2 Claim 18 also recites a motion module that verbalizes text “from the speech made in the performance by the source object.” Similar to the script module, the recited requirements for the motion module include no functional limitations related to the source of the text. The Specification does not di sclose that the source of the text functionally affects the motion module’s extraction of user facial motion data. Accordingly, the phrases “taken from speech made in a performance made by a source object in media content” and “taken from the speech made in the performance by the source object,” as recited, are nonfunctional descriptive material and, thus, these phrases cannot be used to distinguish claims 18, 23, and 34 over the prior art. Ex parte Nehls, 88 USPQ2d at 1889; cf. In reNgai, 367 F.3d 1336, 1338-39 (Fed. Cir. 2004). The Combined Teachings of Jones and Poggio Appellants contend the Examiner errs because Jones and Poggio individually fail to teach or suggest “a script module,” as recited in claim 18. App. Br. 11-13; Reply Br, 5-7. In particular, Appellants assert “Jones 2 We also note Appellants state embodiments “relate to animating an avatar based on facial motion data, such as user facial motion data corresponding to one or more facial gestures observed when a user emulates a source object.” Spec. ^ 1 (emphasis added). 5 Appeal 2017-007372 Application 14/125,157 merely teaches to use capture devices 302 to capture detectable features 114 of the user and not a source object in media content, much less that script data is presented to the user that includes text taken from speech made in a performance by a source object in media content.'''’ App. Br. 12; see also id. at 11-13; Reply Br. 5-7. Appellants further assert “Jones does not teach a source object in media content, such as an actor in a movie that a user attempts to emulate, as claimed,” but “at most merely teaches a user in a field of view of a capture system 110 to create a custom avatar.” Reply Br. 6. Appellants also assert Poggio “merely teaches to use a set of key words to create a photo-realistic talking face and not that a set of key words are presented to the human subject that includes text taken from speech made in a performance by the photo-realistic talking face.” App. Br. 12. Appellants’ arguments are unpersuasive. To the extent Appellants’ argue Jones does not teach “taken from speech made in a performance made by a source object in media content,” as recited, we are unpersuaded because, as discussed above, it is nonfunctional descriptive material. Appellants do not persuasively rebut the Examiner’s finding that the combined teachings of Jones and Poggio teach “a script module to present script data to a user that is to include text. . .,” as required by claim 18. See Final Act. 2-4 (citing Jones 1| 60; Poggio 2:44-55). The Examiner finds, and we agree, by disclosing presentation of training scripts to a user to prompt the user to respond in a particular manner, Jones teaches “a script module to present script data to a user,” as recited. Final Act. 2-3 (citing 6 Appeal 2017-007372 Application 14/125,157 Jones ^ 60).3 The Examiner additionally finds Poggio teaches or at least suggests “to include text taken from speech,” because Poggio’s method of producing photo-realistic talking face images is based on recordings of a human subject’s facial responses when enunciating one or more specifically designed sets of key words. Final Act. 3—4 (citing Poggio 2:44-55); see also Poggio 3:1-6, 6:21-25. The Examiner reasons it would have been obvious to combine the teachings of Jones and Poggio because the combination provides “the ability of the final audio-visual output to look and sound exactly as if it were produced by a real human face.” Final Act. 4. Appellants do not persuade us of error in the Examiner’s findings and reasoning. Appellants further contend the Examiner errs because Jones and Poggio individually fail to teach or suggest “a motion module,” as recited in claim 18. App. Br. 13..14: Reply Br. 7-8. In particular, Appellants assert Jones teaches using capture devices to capture detectable features of the user, but does not teach extracting facial motion data “when the user is to utilize script data that includes text taken from speech made in a performance by a source object in media content, much less to extract when the user is to utilize script data to verbalize text taken from speech made in a performance by the source objectApp. Br. 14 (emphasis modified). Appellants further assert Poggio merely teaches using a set of key words to create a photo-realistic talking face, but does not teach extracting facial 3 By disclosing training scripts that “prompt a user to speak particular words or phrases,” Jones alone teaches “a script module to present script data to the user that is to include text,” as recited. Jones ^ 59. 7 Appeal 2017-007372 Application 14/125,157 motion data when verbalizing “text taken from speech made in a performance by the photo-realistic talking face.” Id. These arguments are unpersuasive because, as discussed above, “taken from the speech made in the performance by the source object,” as recited, is nonfunctional descriptive material. The Examiner finds, except for the requirement “to verbalize the text,” Jones teaches the recited “motion module” by disclosing capturing facial expression and movement of a user in response to presenting the user a training script to create a custom avatar that reflects the user’s distinguishable attributes. Final Act. 3 (citing Jones "fli 32, 55, 60). The Examiner also finds Poggio teaches “to verbalize the text” by disclosing converting input text into speech for a talking face image. Id. at 4 (citing Poggio 2:44-55, 65-67). Appellants do not persuade us the Examiner errs in these findings that Jones and Poggio teach the “motion module” requirements, as recited. Appellants additionally argue the Examiner’s proposed combination of Jones and Poggio is erroneous because (1) the combined teachings would lead away from the claimed invention, (2) the modification of Jones with Poggio would require a substantial reconstruction and redesign and a change in the basic principles of operation of Jones, and (3) the Examiner failed to provide an articulated reasoning with rational underpinning. App. Br. 18- 23; Reply Br. 9..15. Appellants’ “lead away” arguments are unpersuasive because they simply point out that there are differences between Jones, Poggio, and the claimed invention, which does not constitute a teaching away. See In re Beattie, 974 F.2d 1309, 1312-13 (Fed. Cir. 1992). A teaching away requires a reference to actually criticize, discredit, or otherwise discourage the 8 Appeal 2017-007372 Application 14/125,157 claimed solution. See In re Fulton, 391 F.3d 1195, 1201 (Fed. Cir. 2004). Appellants present no such evidence of teaching away in either Jones or Poggio. We also disagree with Appellants that modifying Jones with Poggio would require a substantial reconstruction, redesign, or a change in Jones’s basic principles of operation. Jones’s training scripts can prompt the user to speak a particular word, which teaches the very elements for which the Examiner relies on Poggio—i.e., “to include text” and “to verbalize the text.” See, e.g., Jones ]}]} 58, 62. Finally, contrary to Appellants’ assertion that the Examiner failed to articulate reasoning with rational underpinning, the rejection specifically articulates a reasonable rationale to combine the teachings of Jones and Poggio—i.e., to provide “the ability of the final audio-visual output to look and sound exactly as if it were produced by a real human face.” Final Act. 4. In other words, modifying Jones to include the teachings of Poggio would provide for an avatar that emulates a real human face. Poggio supports this rationale by producing an animated avatar that accurately lip syncs corresponding speech while performing natural facial and body motions. Poggio]} 43. Jones also supports such a need for improvement in the accuracy of avatars. Jones ]} 5. Appellants do not persuasively rebut the Examiner’s proffered rationale. Accordingly, we sustain the rejection of claim 18, and also of claims 19-21, 23, 25, 27, 29, 30, 33, 34, 36, 38^10, and 42, for which Appellants present no arguments separate from those for claim 18. 9 Appeal 2017-007372 Application 14/125,157 Claims 22, 24, 31, 32, 35, and 41 Claim 22 depends from claim 18 and adds, inter alia, the requirement “to emulate a corresponding source object when the corresponding source object in the media content speaks in the performance.” App. Br. 26 (Claims App’x). In rejecting claim 22, the Examiner finds Jones teaches this limitation by its disclosure of an avatar creator system that receives differential attributes which it applies to create a custom avatar that reflects the distinguishable user attributes described in the differential attributes. Final Act. 6 (citing Jones 27-30). Appellants argue “Jones merely teaches to receive multiple sets of user attributes [] and not to emulate anything, much less to emulate a source object in media content or that each user of a plurality of users is to emulate a corresponding source object.'''’ App. Br. 15. In response, the Examiner explains that Jones teaches or suggests a musical performer that the user tries to emulate. Ans. 7 (citing Jones ^ 23). We agree with Appellants. Unlike claim 18, in which there is a lack of any functional requirement for the script module or motion module based on the text in the script data coming from a particular “source object,” claim 22 functionally requires source object emulation “when the corresponding source object in the media content speaks in the performance.” Paragraphs 27-30 of Jones do not mention emulating a source object speaking in a performance, but instead merely disclose receiving and applying differential attributes of a user to a base avatar to create a custom avatar that reflects distinguishable user attributes. Jones ^ 27-30. Paragraph 23 of Jones does not mention any type of performance of a source object in media content, but instead merely discloses that detectable features of a user may include 10 Appeal 2017-007372 Application 14/125,157 structural, external, and behavioral features, including words spoken by a user or voice patterns of user speech. Id. 23. Thus, the Examiner has not provided evidence or technical explanation for how Jones teaches or suggests “to emulate a corresponding source object when the corresponding source object in the media content speaks in the performance,” as recited. Further, although the cited portions of Poggio discloses converting input text into an audio-visual speech stream, resulting in a talking face image enunciating the text, the Examiner has not shown that Poggio teaches or suggests the disputed limitation. See Final Act. 3—4 (citing Poggio 2:44-55, 65-67). Nor has the Examiner provided an adequate rationale to fill the gaps in the cited prior art. See Final Act. 5-6; Ans. 5-8. Accordingly, we do not sustain the Examiner’s § 103 rejection of claim 22. For the same reasons, we do not sustain the rejections of claims 24, 31, 32, 35, and 41, each of which recites a similar limitation and stands similarly rejected based on the disclosures of Jones and Poggio. Claims 26 and 37 Appellants argue the Examiner errs in rejecting claims 26 and 37 because Jones and Poggio fail to teach verbalizing “text taken from speech made in a performance by a source object.” App. Br. 16-17; see also Reply Br. 8-9. In other words, Appellants argue claims 26 and 37 based on requirements recited in their respective parent independent claims 23 and 34. Accordingly, because, as discussed above, the source of the text as recited in claims 23 and 34 is non-functional descriptive material, we sustain the Examiner’s rejection of claims 26 and 37. 11 Appeal 2017-007372 Application 14/125,157 Claim 28 Claim 27, from which claim 28 depends, adds the requirement for “the computing device to extract source facial motion data that corresponds to the source object of the script data and to animate the avatar based on the source facial motion data” to independent claim 23. App. Br. 27 (Claims App’x). Claim 28 further requires “the computing device to extract the source facial motion data from media content that includes one or more of a music video or an animated movie in which the user is absent, wherein the source object is to include one or more of a performer or a character in the media content.” Id. (emphasis added). Thus, the recited extraction of facial motion data in claim 28 is functionally limited by requirements recited for media content. In other words, unlike independent claims 18 and 23, in which, as discussed above, the claim recitation related to “media content” is non-functional descriptive matter, claim 28 functionally requires extracting facial motion data from the recited media content in which the user is absent. The Examiner finds Jones’s disclosure of a “[sjtereoscopic image capture system [that] includes multiple video or other image capture devices which capture image streams from multiple angles and other types of sensors to detect outlines of objects” teaches the added requirement of claim 28. Final Act. 9 (citing Jones Fig. 3, item 320). Appellants argue the Examiner errs because “Jones and Poggio are completely silent regarding media content that includes a music video and/or an animated movie, much less in which a user is absent, or that a source object may include a performer and/or a character in media content, as claimed.” Reply Br. 9; see also App. Br. 17-18. Instead, Appellants assert Jones merely teaches to elicit an 12 Appeal 2017-007372 Application 14/125,157 emotional response such as a humored laugh with a picture or a scenario. App. Br. 17. We agree with Appellants. The Examiner does not explain how Jones’s stereoscopic image capture system, which Jones discloses is used for extracting the user’s facial attributes for creating a customized avatar (see, e.g., Jones 2, 48-60), teaches claim 28’s requirement to extract facial motion data from media content in which the user is not present. There is no finding that Poggio teaches or suggests the disputed limitation, and the Examiner does not provide an adequate rationale to fill the gaps in the cited prior art. See Final Act. 6-7, 8-9; Ans. 5-8. Accordingly, we do not sustain the rejection of claim 28. DECISION For the above reasons, we affirm the § 103 rejections of claims 18-21, 23, 25-27, 29, 30, 33, 34, 36^40, and 42, and we reverse the § 103 rejections of claims 22, 24, 28, 31, 32, 35, and 41. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a)(l)(iv). AFFIRMED-IN-PART 13 Copy with citationCopy as parenthetical citation