Ex Parte Angell et al

Patent Trial and Appeal Board

Nov 5, 2014

11862294 (P.T.A.B. Nov. 5, 2014)

UNITED STATES PATENT AND TRADEMARK OFFICE
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BEFORE THE PATENT TRIAL AND APPEAL BOARD
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Ex parte ROBERT LEE ANGELL and JAMES R. KRAEMER
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Appeal 2012-0030861
Application 11/862,2942
Technology Center 3600
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Before HUBERT C. LORIN, ANTON W. FETTING, and
NINA L. MEDLOCK, Administrative Patent Judges.

MEDLOCK, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE
Appellants appeal under 35 U.S.C. § 134(a) from the Examiner’s final
rejection of claims 1–25. We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM-IN-PART.

1 Our decision references Appellants’ Appeal Brief (“App. Br.,” filed
July 21, 2011) and Reply Brief (“Reply Br.,” filed December 6, 2011), and
the Examiner’s Answer (“Ans.,” mailed October 28, 2011).
2 The real party in interest, identified by Appellants, is International
Business Machines Corporation. App. Br. 2.
Appeal 2012-003086
Application 11/862,294

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CLAIMED INVENTION
Appellants’ claimed invention “is directed to a computer implemented
method, apparatus, and computer usable program product for determining
whether to deliver marketing content to a particular customer based on
dynamic customer data elements for the particular customer” (Spec. ¶ 3).
Claim 1, reproduced below with added bracketed notations, is
illustrative of the subject matter on appeal:
1. A computer implemented method for
automatically determining a marketing status for a customer,
the computer implemented method comprising:
[(a)] receiving data from a set of detectors associated
with a retail facility to form detection data for the customer,
wherein the detection data is gathered in real-time as the
customer is shopping at the retail facility;
[(b)] processing the detection data, by a processor, to
form dynamic data for the customer, wherein the dynamic data
comprises the customer’s response to marketing messages;
[(c)] analyzing the dynamic data to identify a set of
marketing initiation factors, wherein marketing initiation
factors indicate a degree of receptivity of the customer to
marketing messages;
[(d)] responsive to the set of marketing initiation factors
indicating initiation of marketing to the customer, generating a
customized marketing message for the customer; and
[(e)] dynamically transmitting the customized
marketing message to a display device associated with the
customer, wherein the customized marketing message is
displayed to the customer in real-time as the customer is
shopping at the retail facility.

Appeal 2012-003086
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REJECTIONS
Claims 1–4, 8–12, 16–21, and 24 are rejected under 35 U.S.C.
§ 103(a) as unpatentable over Huang (2008/0004951 A1, pub. Jan. 3, 2008)
and Goldhaber (US 5,855,008, iss. Dec. 29, 1998).
Claims 22, 23, and 25 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Huang, Goldhaber, and Gonzalez (2010/0023372 A1,
pub. Jan. 28, 2010).
Claims 5–7 and 13–15 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Huang, Goldhaber, and Stawar (2008/0243626 A1,
pub. Oct. 2, 2008).

ANALYSIS
Independent claims 1, 9, 17, and 20 and dependent claims 3, 4, 10, 12, and
24
Appellants argue independent claims 1, 9, 17, and 20 together (App.
Br. 11–21). We select claim 1 as representative. The remaining claims
stand or fall with claim 1. See 37 C.F.R. § 41.37(c)(1)(vii) (2011).
We are not persuaded by Appellants’ argument that the Examiner
erred in rejecting claim 1 under 35 U.S.C. § 103(a) because neither Huang
nor Goldhaber, alone or in combination, discloses or suggests “processing
the detection data . . . to form dynamic data for the customer, wherein the
dynamic data comprises the customer’s response to marketing messages,”
i.e., limitation (b), as recited in claim 1 (App. Br. 11–21; see also Reply
Br. 4–9). Instead, we agree with, and adopt the Examiner’s response to
Appellants’ argument, as set forth at pages 18–22 of the Answer.
Appellants describe at paragraphs 42 and 43 of the Specification that
detection data is information about a customer, gathered in real-time by a set
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of detectors, as the customer shops in a retail store. The detection data is
processed to form dynamic data for the customer, and this information is, in
turn, used to provide targeted advertising to the customer. Describing
“dynamic data,” the Specification states:
Dynamic data 612 is data that includes dynamic customer data
elements that are changing in real-time. For example, dynamic
customer data elements could include, without limitation, the
current contents of a customer’s shopping basket, the time of
day, the day of the week, whether it is the customer’s birthday
or other holiday observed by the customer, customer’s
responses to marketing messages and/or items viewed by the
customer, customer location, the customer’s current shopping
companions, the speed or pace at which the customer is walking
through the retail facility, and/or any other dynamically
changing customer information. Dynamic data 612 includes
external data, grouping data, customer identification data,
customer behavior data, and/or current events data.

Spec. ¶ 121.

Huang discloses an architecture for displaying advertisements to
customers in real-time as they move within a retail establishment, and
describes that a set of sensors monitors and captures information about the
customer (e.g., information regarding the customer’s behavior, the
customer’s clothing, what products the customer is carrying for purchase,
etc.) as the customer moves within the store; this detector data is then
processed and used to present targeted advertising to the customer
(see, e.g., Huang ¶¶ 31–35, 46, 74, and 76). Huang discloses that changes in
the customer’s facial expression also can be monitored and recognized, and
can be used to gauge the customer’s response to advertisements that include
pricing. Huang, thus, describes that the pricing in selected advertisements is
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adjusted upwardly or downwardly depending on the customer’s facial
expressions, i.e., based on the customer’s response to the advertisement
(see Huang ¶ 77).
We agree with the Examiner that “Huang discloses an equivalent
teaching [of detection data] at paragraphs [0032 – 0035] in which a sensor
captures information about a customer or group of individuals as they shop
in a retail store” (Ans. 20), and, based on Appellants’ description of
“dynamic data,” that Huang also discloses (in paragraph 77) dynamic data
comprising the customer’s response to marketing messages (id. at 21–22).3
As such, we agree with the Examiner that Huang discloses the argued
limitation under a broad, but reasonable, interpretation.
Appellants argue that because the combination of Huang and
Goldhaber does not teach or suggest ““processing the detection data . . . to
form dynamic data for the customer, wherein the dynamic data comprises
the customer’s response to marketing messages,” i.e., limitation (b), as
recited in claim 1, the combination cannot disclose or suggest “analyzing the
dynamic data to identify a set of marketing initiation factors, wherein
marketing initiation factors indicate a degree of receptivity of the customer
to marketing messages,” i.e., limitation (c) of claim 1 (App. Br. 19;
see also Reply Br. 9). That argument is not persuasive because, as described

3 The Examiner mistakenly references paragraph 74 rather than
paragraph 77. Appellants assert in their Reply Brief that there is no
reference, in paragraph 74 of Huang, to dynamic data that comprises the
customer’s response to advertising (Reply Br. 6–7). But Appellants do not
address paragraph 77 of Huang at all although it is clear from the
Examiner’s discussion that reference to paragraph 77 was intended.
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above, we agree with the Examiner that Huang discloses limitation (b) of
claim 1.
In view of the foregoing, we sustain the Examiner’s rejection of
claim 1 under 35 U.S.C. § 103(a). We also sustain the Examiner’s rejection
of independent claims 9, 17, and 20, which fall with claim 1.4
Each of dependent claims 3, 4, 10, 12, and 24 depends from one of
independent claims 9, 17, and 20, and was not argued separately. Therefore,
we sustain the Examiner’s rejection of these dependent claims for the same
reasons set forth above with respect to the independent claims from which
they depend.
Dependent claims 2, 18, 19, and 21
Appellants argue dependent claims 2, 18, 19, and 21 together (App.
Br. 21). We select claim 2 as representative. The remaining claims stand or
fall with claim 2. See 37 C.F.R. § 41.37(c)(1)(vii) (2011).
Claim 2 depends from claim 1, and recites that the method further
comprises “responsive to the set of marketing initiation factors indicating the
customer is unreceptive to marketing messages, setting the marketing status
for the customer to a negative marketing status, wherein a negative
marketing status indicates that customized marketing messages are not
transmitted to any display devices for display to the customer.”

4 To the extent that Appellants argue that combining Huang’s sensor
information with Goldhaber’s interaction data does not disclose or suggest
“processing the detection data, by a processor, to form dynamic data for the
customer, wherein the dynamic data comprises the customer’s response to
marketing messages,” (App. Br. 14–21), Appellants’ argument is not
responsive to the rejection as articulated by the Examiner. The Examiner
relies on paragraph 77 of Huang as disclosing this feature (Ans. 19, 23).
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Appellants argue that the Examiner erred in rejecting claim 2 under
35 U.S.C. § 103(a) because:
Although the cited portion of Goldhaber discloses that a
“customer can edit his profile at any time to add or delete
interest features, and to delete any transaction records,” there is
no mention of setting a negative marketing status that indicates
customized marketing is not transmitted for display to the
customer, in response to marketing initiation factors that are
based on the dynamic data as described above [i.e., data
formed using customer information collected by a set of
detectors in a retail facility while the customer was shopping,
and comprising the customer’s response to marketing
messages], indicating the customer is unreceptive to marketing
messages, as in claim 2. Furthermore, no other cited reference
discloses this feature.
(App. Br. 21; see also Reply Br. 9–11). As an initial matter, Appellants’
argument is not persuasive because Appellants argue the references
individually although claim 2 is rejected over the combination of Goldhaber
and Huang. See In re Merck & Co., 800 F.2d 1091, 1097 (Fed. Cir. 1986)
(“Non-obviousness cannot be established by attacking the references
individually where the rejection is based on the teachings of a combination
of references”).
Moreover, we agree with the Examiner that Goldhaber’s disclosure in
Figure 10 of user interest profile 124, “Skiing, Opera, Not politics,”
indicating the user’s interest in skiing and opera, but not politics, constitutes
“setting a negative marketing status,” under a broad, but reasonable,
interpretation, where Goldhaber describes that advertising is delivered that
matches the user’s interests (see Ans. 23–24).
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In view of the foregoing, we sustain the Examiner’s rejection of
claim 2 under 35 U.S.C. § 103(a). We also sustain the Examiner’s rejection
of claims 18, 19, and 21, which fall with claim 2.
Dependent claim 11
Claim 11 depends from claim 9, and includes language substantially
similar to the language of claim 2. We sustain the Examiner’s rejection of
claim 11 for the same reasons set forth above with respect to claim 2
(see Ans. 25, referring to the response to claims 2, 18, 19, and 21).
Dependent claims 8 and 16
Claim 8 depends from claim 1, and recites that the method further
comprises, inter alia:
comparing the current customer behavior data to the past
customer behavior data;
responsive to the comparison indicating the customer is
walking at a customary pace or shopping at a customary rate,
generating positive marketing initiation factors; and
responsive to the comparison indicating the customer is
walking at a pace that is faster than the customary pace or
shopping at a rate that is faster than the customary rate of
shopping, generating negative marketing initiation factors.

Claim 16 depends from claim 9, and includes substantially similar language.
We are persuaded by Appellants’ argument that the Examiner erred in
rejecting claims 8 and 16 under 35 U.S.C. § 103(a) (App. Br. 22–23;
see also Reply Br. 12–13). The Examiner cites Huang at paragraphs 7, 31–
38, 46, and 74–77, Figure 4, step 400, and Figure 6, step 604, as disclosing
the claimed limitations (Ans. 9 and 25–26). However, we find nothing in
the cited portions of Huang that discloses or suggests generating a positive
marketing initiation factor or a negative marketing initiation factor based on
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whether a comparison of the current customer behavior data to the past
customer behavior data indicates that the customer is walking/shopping at a
customary pace/rate or walking/shopping at a pace/rate that is faster than the
customary pace/rate.
Therefore, we do not sustain the Examiner’s rejection of claims 8 and
16 under 35 U.S.C. § 103(a).
Dependent claims 5–7, 13–15, 22, 23, and 25
Each of claims 5–7, 13–15, 22, 23, and 25 depends from one of
independent claims 1, 9, and 20. Appellants do not present any arguments
for the separate patentability of claims 5–7, 13–15, 22, 23, and 25 except to
assert that the secondary references relied on in rejecting the claims do not
cure the alleged deficiencies of Huang and Goldhaber, and that the
dependent claims are allowable based on their dependence on claims 1, 9,
and 20.
We are not persuaded for the reasons set forth above that the
Examiner erred in rejecting claims 1, 9, and 20 under 35 U.S.C. § 103(a).
Therefore, we sustain the Examiner’s rejection of claims 5–7, 13–15, 22, 23,
and 25 for the same reasons.

Appeal 2012-003086
Application 11/862,294

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DECISION
The Examiner’s rejections of claims 1–7, 9–15, and 17–25 under
35 U.S.C. § 103(a) are affirmed.
The Examiner’s rejection of claims 8 and 16 under 35 U.S.C. § 103(a)
is reversed.
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).

AFFIRMED-IN-PART
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