Ex Parte Crystal et al

Patent Trial and Appeal Board

Mar 20, 2014

11083627 (P.T.A.B. Mar. 20, 2014)

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.
11/083,627 03/18/2005 Jack C. Crystal 52579-113226 1249
119346 7590 03/21/2014
Hanley, Flight & Zimmerman (Client: Arbitron)
150 S. Wacker, Suite 2100
Chicago, IL 60606
EXAMINER
FLEISCHER, MARK A
ART UNIT PAPER NUMBER
3629
MAIL DATE DELIVERY MODE
03/21/2014 PAPER
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.
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte JACK C. CRYSTAL, JAMES M. JENSEN,
ALAN R. NEUHAUSER, JACK K. ZHANG, and DANIEL W. PUGH
____________

Appeal 2012-003884
Application 11/083,627
Technology Center 3600
____________

Before WILLIAM A. CAPP, NEIL T. POWELL, and
BART A. GERSTENBLITH, Administrative Patent Judges.

GERSTENBLITH, Administrative Patent Judge.

DECISION ON APPEAL

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STATEMENT OF THE CASE
Jack C. Crystal et al. (“Appellants”) appeal under 35 U.S.C. § 134
from the Examiner’s decision rejecting claims 1-5. We have jurisdiction
under 35 U.S.C. § 6(b).
Claimed Subject Matter
Claims 1, 4, and 5 are the independent claims on appeal. Claims 1
and 5 are illustrative of the claimed subject matter and are reproduced
below.
1. A method of gathering data concerning usage of a
publication and usage of media, comprising:
producing first data in a portable monitor configured to
be carried on the person of a respondent, said first data
representing usage of a publication, and is based on one of (a) a
detected proximity value indicating the physical proximity of
the respondent to the publication, and (b) detecting a usage
characteristic of the publication by the respondent; and
producing second data in the portable monitor
representing usage of media.

5. A method of gathering data for use in a market research
study, comprising the steps of:
producing first data in a portable monitor designed to be
carried on the person of a respondent in the market research
study, wherein the first data represents a usage characteristic of
at least one publication based on a respondent's activity relative
to the publication;
producing second data in the portable monitor, wherein
the second data represents usage of media by the respondent;
and
transmitting the first and second data from the portable
monitor for use in the market research study.
Br. 26, 28, Claims App’x.
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References
The Examiner relies upon the following prior art references:
Lu US 6,647,548 B1 Nov. 11, 2003
Rutledge US 2004/0054627 A1 Mar. 18, 2004
Troyansky US 7,331,725 B2 Feb. 19, 2008
Rejections
Appellants seek review of the following rejections:
I. Claims 1-5 are rejected under 35 U.S.C. § 112, second
paragraph, as being indefinite;
II. Claims 1-4 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Lu and Rutledge; and
III. Claim 5 is rejected under 35 U.S.C. § 103(a) as
unpatentable over Lu, Rutledge, and Troyansky et al.
SUMMARY OF DECISION
We AFFIRM-IN-PART.
OPINION
Rejection I
The Examiner concluded that claims 1-5 are indefinite for failing to
particularly point out and distinctly claim the subject matter which
Appellants regard as the invention. Ans. 4-5. The Examiner identified
several phrases in one or more of the claims as indefinite. We discuss each
phrase.1

1 The Examiner concluded that the phrase “represents a type of usage” is
indefinite. Ans. 4. This phrase, however, is not recited in the pending
claims.
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Claims 1, 4, and 5 - “usage characteristic”
The Examiner concluded that the phrase “usage characteristic” is
indefinite because “it can literally mean anything and provides no
meaningful limitation.” Ans. 4. The Examiner concluded that “the
multiplicity of characteristics [recited in the Specification] renders the term
‘usage characteristic’ as meaningless especially in light of the fact that the
phrase ‘usage characteristic’ is not defined.” Id. The Examiner also
indicated that “[t]he difference from detecting signals and processing them
to produce data reflective of a ‘usage’ is huge and is missing from the
claims.” Id. at 5.
Appellants contend that the phrase “usage characteristic” is “clear in
[its] plain and ordinary meaning[].” Br. 17. Specifically, the phrase
“refer[s] to a characteristic that provides information about a manner in
which a publication is being used.” Id. Appellants point to the Specification
in support of this position. Id. at 17-18.
The test for definiteness under 35 U.S.C. § 112, second paragraph, is
whether “those skilled in the art would understand what is claimed when the
claim is read in light of the specification.” Orthokinetics, Inc. v. Safety
Travel Chairs, Inc., 806 F.2d 1565, 1576 (Fed. Cir. 1986). We interpret the
claim language, where necessary, giving the claims their broadest reasonable
interpretation in light of the Specification. In re Crish, 393 F.3d 1253, 1256
(Fed. Cir. 2004). In determining the ordinary and customary meaning of the
claims as viewed by a person of ordinary skill in the art, it is appropriate to
consult a general dictionary definition for guidance. Comaper Corp. v.
Antec, Inc., 596 F.3d 1343, 1348 (Fed. Cir. 2010).
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The ordinary and customary meaning of “usage” is “the act or way of
using.” See Chambers 21st Century Dictionary (2001), accessed at
http://search.credoreference.com/content/entry/chambdict/usage/0?searchId=
b6be6c98-aacc-11e3-9af0-0aea1e24c1ac&result=0 (last visited Mar. 13,
2014). The ordinary and customary meaning of “characteristic” is “a
distinctive quality or feature.” See id., accessed at
http://search.credoreference.com/content/entry/chambdict/characteristic/0?se
archId=58db0ac4-a309-11e3-981b-0aea1e3b2a47&result=1 (last visited
Mar. 13, 2014). Thus, one of ordinary skill in the art at the time of invention
would understand the phrase “usage characteristic” to mean a feature of the
act of using.
Appellants’ Specification is consistent with the ordinary and
customary meaning of the phrase “usage characteristic” as set forth above.
For example, the Specification states:
the clock pulses and/or time data are used by the processor
1090 to evaluate raw data from one or more of sensors 1120
and 1130 and piezoelectric transducer 1070 in order to assess
whether it represents publication usage activity by a person or
not. For example, a single pulse of energy from piezoelectric
transducer 1070 or sensor 1120 isolated in time from other such
pulses generally is seen as not related to publication usage.
However, repeated pulses from transducer 1070 or sensor 1120
are more likely to represent publication usage, such as a person
turning the pages of a magazine, and may be regarded as an
indication of such usage. Other characteristics of such pulses,
such as pulse width, magnitude and/or frequency are also used
in various embodiments to evaluate the likelihood that such
pulses represent publication usage by a person. These
characteristics also provide an indication of the manner of
usage by the person. That is, relatively wide pulses (that is,
pulses having a greater time duration), reflect slower page
turning and a greater likelihood that the person using the
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magazine or other publication is paying greater attention to its
contents. Narrower pulses can reflect less attention given to the
contents of the publication, where, for example, the person is
scanning the publication in a waiting room to "kill time" and is
impatient.
Spec., para. [0085] (emphases added). The detection of turning pages of a
publication (indication of such usage) and detection of how fast the pages of
the publication are being turned (manner of usage) are each a feature of the
act of using a publication (i.e., a “usage characteristic”). Although the
phrase “usage characteristic” is quite broad, breadth of a claim limitation
alone does not render a claim term indefinite. See In re Gardner,
427 F.2d 786, 788 (CCPA 1970) (“Breadth is not indefiniteness.”), cited in
Ultimax Cement Mfg. Corp. v. CTS Cement Mfg. Corp., 587 F.3d 1339,
1352 (Fed. Cir. 2009).
Accordingly, we do not sustain Rejection I with respect to the phrase
“usage characteristic.”
Claim 5 - “respondent’s activity relative to the publication”
The Examiner concluded that the phrase “respondent’s activity
relative to the publication” is indefinite because “it can mean virtually
anything.” Ans. 5. The Examiner posited whether this phrase is broad
enough to encompass “a ‘respondent’ playing catch with a book[.]” Id.
Appellants contend that the phrase “respondent’s activity relative to
the publication” is clear in its plain and ordinary meaning. See Br. 17-18.
Appellants point to the Specification as supporting their position. See id. at
18.
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The ordinary and customary meaning of “relative” is “compared with
something else.” See Chambers 21st Century Dictionary (2001), accessed
at http://search.credoreference.com/content/entry/chambdict/relative/0?searc
hId=1cb53dee-a3b3-11e3-a559-0aea1e3b2a47&result=1 (last visited
Mar. 13, 2014). Thus, one of ordinary skill in the art at the time of invention
would understand the phrase “respondent’s activity relative to the
publication” to mean respondent’s activity compared to the publication.
Appellants’ Specification is consistent with the ordinary and
customary meaning of the phrase as set forth above. For example,
Appellants’ Specification states:
The portable monitor 200 receives the location data at
216 for use in confirming publication usage data received by
the interface 212. For example, if the location data indicates
that the participant is walking or running along a sidewalk, a
road or within a park, such location data implies that the
participant is probably not reading a publication whose data is
then received by the monitor 200. However, if the location data
indicates that the participant is home or on a train, this
location data implies that the participant may well be reading a
publication, and thus tends to confirm the validity of
publication usage data received by the monitor 200 at that
time. . . .
First sensor 310 senses a selected one of translational
movement, deformation, grasping, proximity of the publication
to a person and exposure of the publication. Second data
sensor 320 senses one of translational movement, deformation,
grasping, proximity of the publication to a person and exposure
of the publication, other than the event or condition sensed by
the first data sensor 310.
Spec., paras. [0075]-[0076] (emphases added). The Specification furnishes
numerous examples of a respondent’s activity relative to the publication.
E.g., id. at para. [0075] (detection of the respondent walking));
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para. [0076] (detection of the respondent grasping the publication);
para. [0085] (detection of the respondent reading the publication). Despite
the numerous examples listed above that are encompassed by the phrase
“respondent’s activity relative to the publication,” as explained supra,
breadth of the phrase does not render it indefinite.
Accordingly, we do not sustain Rejection I.
Rejection II
The Examiner concluded that the combination of Lu and Rutledge
would have rendered obvious the subject matter of claims 1-4 to one of
ordinary skill in the art at the time of invention. Ans. 5-9. The Examiner
found that Lu discloses the elements of the claims, except that Lu does not
disclose that said first data representing usage of a publication “is based on
one of (a) a detected a proximity value indicating the physical proximity of
the respondent to the publication, and (b) detecting a usage characteristic of
the publication by the respondent.” Id. at 6 (addressing claim 1),
8 (addressing claim 4). The Examiner found that Rutledge discloses these
limitations and concluded that it would have been obvious to one of ordinary
skill in the art:
to combine the teachings of Lu and Rutledge and develop a
portable device that acquires information pertaining to both
media and printed publications as such device can then be
utilized to acquire both types of data and be used to monitor
consumer behavior for a variety of economic purposes such as
marketing or rating systems and that the technical ability
existed at the time of the invention to combine the elements as
claimed and the results of the combination were predictable.
Id. at 6-7 (addressing claim 1), 9 (addressing claim 4).
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Appellants raise several arguments in response to this rejection,
including that neither Lu nor Rutledge disclose:
producing first data in a portable monitor configured to be
carried on the person of a respondent, said first data
representing usage of a publication, and is based on one of (a) a
detected proximity value indicating the physical proximity of
the respondent to the publication, and (b) detecting a usage
characteristic of the publication by the respondent.
Br. 18-19. Appellants contend that “Rutledge is only concerned with media
identification over a computer network, and is not related to determining
publication usage based on proximity or physical contact in a portable
meter.” Id. at 19 (emphasis in original).
Rutledge is directed to “[a] method, system, and software for creating
a universal identification system for articles of printed and electronic
media.” Rutledge, Abstract. Paragraphs [0393] and [0394] of Rutledge, as
relied upon by the Examiner, describe a computer screen displaying a
computer icon, representative of a publication (media ID icon 1730), in close
digital proximity to another computer icon (primary subject classification
icon 1736) on the same screen. See id. at para. [0394]; fig. 42 (showing
graphical representations of the icons on a computer screen). Thus, the
proximity detected relied upon by the Examiner is not a physical proximity
of a respondent to the publication, but rather the proximity of one on-screen
icon to another.
The Examiner also finds that Rutledge’s disclosure of the phrase “user
is viewing” corresponds to the claim phrase “usage characteristic.” Ans. 6.
The Examiner further finds that Rutledge discloses “an amplifier that
receives a signal, hence a detected value.” Id. (citing Rutledge,
para. [0173]).
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Paragraph [0173] of Rutledge discloses that amplifier 452 “receives
the signal from the detector 450.” Rutledge, para. [0173]. The signal
received by the detector, however, is that of light or energy detected by the
media ID scanning mechanism 446 based on scanning printed media into a
digital version stored in memory. See, e.g., id. at paras. [0165], [0171],
[0172]. Thus, Rutledge’s detection of this signal has nothing to do with
detecting the activities relied upon by the Examiner as disclosing “usage”
from paragraphs [0394] and [0395].
Accordingly, we do not sustain Rejection II.
Rejection III
The Examiner concluded that the combination of Lu, Rutledge, and
Troyansky would have rendered obvious the subject matter of claim 5 to one
of ordinary skill in the art at the time of invention. Ans. 9-11. The
Examiner found that Lu discloses the elements of the claim, except that Lu
does not disclose “the notion of a usage characteristic.” Id. at 10 (emphasis
in original). The Examiner found that Rutledge discloses this limitation and
concluded that it would have been obvious to one of ordinary skill in the art
for the same reason as applied to claims 1 and 4. Id.
The Examiner also found that Lu and Rutledge disclose the elements
of the claim, except that neither discloses “wherein the first data represents a
usage characteristic of at least one publication based on a respondent’s
activity relative to the publication.” Id. The Examiner found that Troyansky
discloses this element of the claim. Id. at 10-11. The Examiner concluded
that it would have been obvious to one of ordinary skill in the art at the time
of invention:
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to combine the teachings of Lu and Troyansky and develop a
portable device that acquires information pertaining to both
media and printed publications based on physical contact as
such device can then be utilized to acquire both types of data
and be used to monitor consumer behavior for a variety of
economic purposes such as marketing or rating systems and that
the technical ability existed at the time of the invention to
combine the elements as claimed and the results of the
combination were predictable.
Id. at 11.
Appellants raise several arguments in response to the rejection. First,
Appellants contend that “[c]laim 5 is similar to claim 1 and the arguments
above with respect to Lu and Rutledge are equally applicable.” Br. 24.
Unlike Rejection II, however, the Examiner’s reliance upon Rutledge
here is limited to only the limitation “usage characteristic.” Ans. 10. As
noted supra, Rutledge describes that computer icons on a computer screen
represent printed media (publications) cataloged within the computer
software. See Rutledge, paras. [0393]-[0394]. A user’s interactions with the
icons within the software or viewing the icons on a computer screen fall
within the broad meaning of “usage characteristics” as discussed supra.
Further, the Examiner’s rejection relies upon both Rutledge and
Troyansky as disclosing a “usage characteristic.” See Ans. 10-11 (indicating
reliance upon Rutledge and also finding that Troyansky’s disclosure of
“‘move printed documents’ corresponds to a type of usage”). Thus, in light
of the rejection before us, the Examiner’s reliance on Rutledge was
cumulative to Examiner’s reliance on Troyansky. Accordingly, even if we
were to determine that Rutledge does not disclose a “usage characteristic,”
that would not end our inquiry because the Examiner also relied upon
Troyansky as disclosing a “type of usage.” Additionally, we agree with the
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Examiner that Troyansky discloses a “usage characteristic,” in light of the
broad meaning of the phrase, because Troyansky detects if the printed
documents move. See Troyansky, col. 25 ll. 40-42 (disclosing “a system
that allows for detection of unauthorized attempts to move printed
documents out of the restricted zone”).
Second, Appellants contend that “[t]here is nothing in Troyansky that
teaches or suggests ‘a type of usage of at least one publication based on a
type of physical contact made with the publication by the respondent.’”
Br. 24 (emphasis added).
Appellants’ argument is not persuasive because it is not
commensurate in scope with claim 5. Specifically, claim 5 does not recite
“physical contact made with the publication” or other requirement of
physical contact between the respondent and the publication. Rather, claim
5 recites “wherein the first data represents a usage characteristic of at least
one publication based on a respondent's activity relative to the publication.”
Br. 28, Claims App’x (emphasis added).
Troyansky’s detection of an attempt to move a document (publication)
from a restricted zone is indeed detecting a respondent’s activity relative to a
publication. See Troyansky, col. 25 ll. 40-42.
Accordingly, we sustain Rejection III.
DECISION
We REVERSE the Examiner’s decision rejecting claims 1-5 under 35
U.S.C. § 112, second paragraph, as being indefinite.
We REVERSE the Examiner’s decision rejecting claims 1-4 under 35
U.S.C. § 103(a) as unpatentable over Lu and Rutledge.
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We AFFIRM the Examiner’s decision rejecting claim 5 under 35
U.S.C. § 103(a) as unpatentable over Lu, Rutledge, and Troyansky.
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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