Ex Parte Sivadas

Patent Trial and Appeal Board

Mar 30, 2017

12834403 (P.T.A.B. Mar. 30, 2017)

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.
12/834,403 07/12/2010 Sunil Sivadas 042933/392586 8417
10949 7590
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
EXAMINER
CHOI, DAVID E
ART UNIT PAPER NUMBER
2174
NOTIFICATION DATE DELIVERY MODE
04/03/2017 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):
u sptomail @ alston .com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte SUNIL SIVADAS
Appeal 2016-004455
Application 12/834,4031
Technology Center 2100
Before BRUCE R. WINSOR, SHARON FENICK, and JOHN R. KENNY,
Administrative Patent Judges.
FENICK, Administrative Patent Judge.
DECISION ON APPEAL
This is an appeal under 35 U.S.C. § 134(a) from the Examiner’s Final
Rejection of claims 1—16, 18—20, 34, and 35, which constitute all the claims
pending in this application. Claims 17 and 21—33 are cancelled. (Appeal
Br. 18—19.) We have jurisdiction under 35 U.S.C. § 6(b)(1).
We affirm.
1 Appellant identifies Nokia Technologies Oy as the real party in interest.
(Appeal Br. 2.)
Appeal 2016-004455
Application 12/834,403
Invention
Appellant’s invention relates to changing a user interface of a user
device or information presented to the user via the device, in response to a
detected emotional or physical condition of the user. (Spec. Tflf 4—5,
Abstract.)
Exemplary Claim
Claim 1, reproduced below, is exemplary:
1. A method comprising:
determining, with a processor, at least one of an
emotional or physical condition of a user of a device; and
changing at least one of:
a) a setting of a user interface of the device, or
b) information presented through the user
interface,
to provide at least one user selectable action dependent on the
detected emotional or physical condition wherein at least one of
the user selectable actions enables access to a further function
of the apparatus and is displayed in a more prominent position
relative to a previous position prior to the change, wherein the
prominence of the user selectable action is determined using a
point scoring system and points are awarded to possible actions
based on the condition of the user.
References and Rejections
The Examiner rejects claims 1, 2, 4, 5, 7—14, 16, 19, 20, and 34 under
35 U.S.C. § 103(a) as unpatentable over Isberg (US 2007/0288898 Al; pub.
Dec. 13, 2007), Fedorovskaya et al. (US 8,154,615 B2; iss. Apr. 10, 2012)
(“Fedorovskaya”), and Fee et al (2008/0077569 Al; pub. Mar. 27, 2008)
(“Fee”). (Final Action 3—13.)
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Application 12/834,403
The Examiner rejects claims 3, 6, 15, and 18 under 35 U.S.C. § 103(a)
as unpatentable over Isberg, Fedorovskaya, Lee, and Matsushima (US
2009/0177607 Al; pub. July 9, 2009). (Final Action 13—16.)
Issues
Did the Examiner err in finding that Fedorovskaya, in combination
with Isberg and Lee, teaches or suggests providing “at least one user
selectable action dependent on the detected emotional or physical condition”
“displayed in a more prominent position relative to a previous position,” as
recited in claim 1 ?
Did the Examiner err in finding that the combination of prior art
teaches or suggests “wherein the prominence of the user selectable action is
determined using a point scoring system and points are awarded to possible
actions based on the condition of the user,” as recited in claim 1?
ANALYSIS
We adopt the findings of fact made by the Examiner in the Final
Action, Advisory Action, and Examiner’s Answer as our own. We concur
with the conclusions reached by the Examiner for the reasons given in the
Examiner’s Answer. We highlight the following for emphasis.
providing “at least one user selectable action dependent on the detected
emotional or physical condition ” “displayed in a more prominent position
relative to a previous position’'’
With respect to the provision of user selectable actions, Appellant
agrees that “Fedorovskaya does disclose that some user actions may be
displayed,” and that images (but not user selectable actions) are taught or
suggested to be displayed in positions of variable prominence. (Appeal Br.
11.) Appellant describes these as “different embodiments of Fedorovskaya”
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Application 12/834,403
and asserts that it would require inventive activity to combine them. (Id. at
12; Reply Br. 2.)
We agree with the Examiner that the combination of the prior art
cited, including Fedorovskaya’s “action options” and images being
rearranged and zoomed based on emotional conditions, fairly teach or
suggest the disputed limitation. Appellant’s bare assertion that it would
require inventive activity to combine the various teachings of Fedorovskaya
(Appeal Br. 12) is unsupported by any explanation as to why this is the case.
Additionally, while Appellant finds no “hint or suggestion that [the
teachings of Fedorovskaya] can be combined” (Reply Br. 2), this is not
dispositive. We are mindful that the skilled artisan would “be able to fit the
teachings of multiple patents together like pieces of a puzzle” because the
skilled artisan is “a person of ordinary creativity, not an automaton.” KSR
Int'l Co. v. Teleflex Inc., 550 U.S. 398, 420-21 (2007). Here, Appellant has
not demonstrated that the Examiner's proffered combination would have
been “uniquely challenging or difficult for one of ordinary skill in the art.”
Leapfrog Enters., Inc. v. Fisher-Price, Inc., 485 F.3d 1157, 1162 (Fed. Cir.
2007) (citing KSR, 550 U.S. at 418). We agree with the Examiner that it
would not have been.
“wherein the prominence of the user selectable action is
determined using a point scoring system and points are awarded
to possible actions based on the condition of the user”
Appellant argues that it would not be “necessary or obvious” to use a
ranking or points system in conjunction with Fedorovskaya’s display of
items at different levels of prominence:
[I]n Fedorovskaya the ‘things’ are displayed at different levels
of prominence by monitoring the user’s response to the
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Application 12/834,403
displayed items. The user’s response removes the need for any
other system of ordering or arranging the ‘things.’
(Appeal Br. 12.) In the Reply Brief, the Appellant explains that, in
Fedorovskaya, the viewer response is only used to add an image or
informational program to a list of images to be displayed, or remove it if the
response is negative. (Reply Br. 3, citing Fedorovskaya 10:24—26, 34—57.)
However, even if this portion of Fedorovskaya can be read as
supporting Appellant’s view of user response, it is not the only user response
model taught in Fedorovskaya. We agree with the Examiner that bringing
certain items into prominence by monitoring user reaction teaches or
suggests a ranking, at least of the displayed items. (Final Action 6; Advisory
Action; Answer 6.) Additionally, we note that while not specifically cited
by the Examiner, Fedorovskaya teaches:
Several techniques can be automatically employed to enable the
invention, for example, in one embodiment several
informational programs are presented simultaneously on a large
format display. The viewer's preference for one of the programs
is reflected by the viewer's gaze, body gestures and motion, and
is established to bring the program content that the viewer user
is most interested in or focused on to the central location of the
display or to the most proximal location to the subject by re­
arranging the displayed content and information. Other program
content could even be maintained still visible, but adjusted in
relative size or position with respect to the viewer's preferences.
(Fedorovskaya 16:34^45.)
Appellant also argues that Lee does not teach or suggest the display of
actions or things at different levels of prominence using a points system.
The Examiner relies on Lee to teach using a point system to score emotional
responses (Lee 135) in combination with Fedorovskaya’s and Isberg’s
teachings. See Final Action 6. We agree with the Examiner (Advisory
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Application 12/834,403
Action; Answer 7—8) that this argument amounts to an individual attack on
one reference. One cannot show nonobviousness by attacking references
individually where the rejections are based on combinations of references.
See In re Merck & Co., Inc., 800 F.2d 1091, 1097 (Fed. Cir. 1986) (citing In
re Keller, 642 F.2d 413, 425 (CCPA 1981)).
Therefore, we are not persuaded by Appellant’s arguments of error in
the Examiner’s rejection of claim 1. We sustain the obviousness rejection of
claim 1, independent claims 13 and 34, argued on the same basis (Appeal
Br. 11) and dependent claims 2—12, 14—16, 18—20, and 35, not argued
separately with particularity.
DECISION
The Examiner’s 35 U.S.C. § 103(a) rejections of claims 1—16, 18—20,
34, and 35 are affirmed.
Pursuant to 37 C.F.R. § 1.136(a)(l)(iv), no time period for taking any
subsequent action in connection with this appeal may be extended.
AFFIRMED
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