Ex Parte Berg et al

Patent Trial and Appeal Board

Mar 9, 2015

11851638 (P.T.A.B. Mar. 9, 2015)

UNITED STATES PATENT AND TRADEMARK OFFICE
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BEFORE THE PATENT TRIAL AND APPEAL BOARD
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Ex parte CHARLES JOHN BERG JR., DAVID KEITH EWART,
and NICK ROBERT HARRINGTON
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Appeal 2012-006486
1

Application 11/851,638
Technology Center 3600
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Before PHILIP J. HOFFMANN, ROBERT L. KINDER, and
CARL L. SILVERMAN, Administrative Patent Judges.

HOFFMANN, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE
Appellants appeal under 35 U.S.C. § 134 from the rejection of claims
12–20.
2
We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.
According to the Specification, Appellants “invention relates to
methods of using an emotive response and selection preference system

1
Appellants state, “[t]he real party in interest is The Procter & Gamble
Company.” Br. 1.
2
Our decision references Appellants’ Specification (“Spec.,” filed Sept. 7,
2007) and Appeal Brief (“Br.,” filed Oct. 17, 2011), as well as the
Examiner’s Answer (“Answer,” mailed Dec. 16, 2011).
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Application 11/851,638

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comprising . . . at least one visual stimulus, to obtain consumer feedback
regarding their selection preference or determine their probable emotive
state in response to the at least one visual stimulus.” Spec. 1, ll. 12–16.
Claims 12 and 16 are the only independent claims under appeal. We
reproduce claim 12 below as representative of the appealed claims.
12. A method of obtaining consumer research
data comprising the steps;
(a) providing a visual stimulus;
(b) defining an area of interest (AOI) in the visual
stimulus;
(c) upon defining the AOI, presenting the visual
stimulus to a consumer;
(d) collecting eye gazing data from the consumer
while presenting the visual stimulus to the
consumer;
(e) collecting biometric data from the consumer
while presenting the visual stimulus to the
consumer; and
(f) associating the collected biometric data and the
collected eye gazing data in relation to the AOI.
Br., Claims App.
REJECTIONS AND PRIOR ART
Appellants appeal the following rejections made by the Examiner:
claims 12–14 under 35 U.S.C. § 103(a) as unpatentable over Miller
(US 2004/0103111 A1, pub. May 27, 2004) and Harvey (US 4,348,186, iss.
Sept. 7, 1982);
claims 15–19 under 35 U.S.C. § 103(a) as unpatentable over Miller,
Tavares (US 2005/0289582 A1, pub. Dec. 29, 2005), and Harvey; and
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Application 11/851,638

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claim 20 under 35 U.S.C. § 103(a) as unpatentable over Miller,
Tavares, Harvey, and Johnston (US 2006/0041401 A1, pub. Feb. 23, 2006).
ANALYSIS
Independent claim 12 requires, “defining an area of interest (AOI) in
the visual stimulus[, and] . . . upon defining the AOI, presenting the visual
stimulus to a consumer.” Appellants argue the Examiner’s proposed
combination of Miller and Harvey does not teach or suggest these
limitations. Br. 3–4. Specifically, Appellants argue that:
In each reference a visual stimulus is presented to
a viewer and the interaction of the viewer with the
presented stimulus is utilized to define an AOI.
Neither reference teaches the presentation of a
predefined AOI as part of the stimulus. The
Examiner admits that Miller fails in this manner
and Harvey has been added to address this failure.
Harvey also fails to teach or suggest this
limitation. The disclose[d] AOI of Harvey is
determined according to the interaction of the
Trainee with the visual stimulus. It is not
determined and then presented to the trainee.
Id. at 3.
In response, the Examiner agrees with Appellants that in Harvey a
user does define an area of interest (AOI). See Answer 17–18. However,
the Examiner also finds that after Harvey’s user defines the AOI (such that
Harvey discloses claim 12’s limitation, “defining an area of interest (AOI) in
the visual stimulus” (Br., Claims App.)), based on the AOI Harvey
“subsequently presents the user a new, full resolution image correlating to
the determined area of interest” (Answer 17–18), such that Harvey discloses
claim 12’s limitation, “upon defining the AOI, presenting the visual stimulus
to a consumer” (Br., Claims App.). We agree with the Examiner’s statement
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(see Answer 18) that, contrary to Appellants’ arguments (see Br. 3), claim
12, broadly and reasonably construed, does not require that the AOI is
selected and defined by the operator before being presented to the user.
Consistent with the Examiner’s findings regarding Harvey’s teachings, the
above-discussed limitations of claim 12 are disclosed by Harvey’s teaching
that the user defines the AOI and then the AOI is presented again to the user.
For the above reasons, we sustain the rejection of claim 12, as well as
claims 13 and 14 dependent from claim 12, which Appellants do not argue
separately.
Appellants argue claims 15–20 are allowable because none of the
Examiner’s proposed combinations discloses the above-discussed limitations
of claim 12. See Br. 4–5. Inasmuch as we find that the proposed
combination of Miller and Harvey disclose claim 12’s limitations, we sustain
the rejections of claims 15–20.

DECISION
The Examiner’s rejections of claims 12–20 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).

AFFIRMED

rvb