Ex Parte el Kaliouby et al

Patent Trial and Appeal Board

Feb 25, 2019

14068919 (P.T.A.B. Feb. 25, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
14/068,919
85181 7590
Adams Intellex, PLC
PO Box 197
Hinesburg, VT 05461
10/31/2013
02/27/2019
FIRST NAMED INVENTOR
Rana el Kaliouby
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
AFF-057 1304
EXAMINER
WHITAKER, JONATHAN J
ART UNIT PAPER NUMBER
3622
NOTIFICATION DATE DELIVERY MODE
02/27/2019 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):
patents@adamsip.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte RANA EL KALIOUBY, MELISSA SUE BURKE,
ANDREW EDWIN DREISCH, P ANU JAMES TURCOT and
EVANKODRA
Appeal 2018-001658
Application 14/068,919
Technology Center 3600
Before CARL W. WHITEHEAD JR, JEFFREYS. SMITH and
JAMES B. ARPIN, Administrative Patent Judges.
WHITEHEAD JR., Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellants 1 are appealing the final rejection of claims 1, 5-8, 10, 12,
18-21, 23, 24, 28, 30, 34, 42--44, 46, 48, 53---60, 62 and 63 under 35 U.S.C.
§ 134(a), all of the pending claims. Appeal Brief 5. We have jurisdiction
under 35 U.S.C. § 6(b) (2012).
We affirm.
1 Appellants identify Affectiva, Inc. as the real party in interest. Appeal
Brief 3.
Appeal 2018-001658
Application 14/068,919
Introduction
The invention is directed to "analysis of mental states and more
particularly to optimizing media based on mental states." Specification ,r 2.
Illustrative Claim
1. A computer-implemented method for media analysis
compnsmg:
collecting mental state data from a plurality of people as
they view a media presentation;
analyzing the mental state data to produce mental state
information; and
optimizing the media presentation based on the mental
state information, wherein the media presentation includes an
advertisement and wherein optimizing includes optimizing the
media presentation for a mobile platform and further
compnsmg:
collecting the mental state data from the plurality of
people for multiple viewings of the media presentation and
optimizing the media presentation based on the multiple
v1ewmgs;
determining duration for the media presentation as
part of the optimizing;
determining brand reveal time for the media
presentation;
developing norms based on a plurality of media
presentations and where the norms are used in the
optimizing of the media presentation; and
calculating an expressiveness score for the media
presentation which is based on total movement for faces of
the plurality of people and using the expressiveness score in
the optimizing of the media presentation.
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Rejections on Appeal
Claims 1, 5-8, 10, 12, 18-21, 23, 24, 28, 30, 34, 42--44, 46, 48,
53---60, 62 and 63 stand rejected under 35 U.S.C. § 101 because the claimed
invention is directed to nonstatutory subject matter. Final Action 8-12.
Claims 1,5-8, 10, 12, 18-21,23,24,34,43,44,46,48,53-58,60,62
and 63 stand rejected under pre-AIA 35 U.S.C. § I03(a) as being
unpatentable over Elliott (U.S. Patent Application Publication 2009/0210290
Al; published August 20, 2009) and Marci (U.S. Patent Application
Publication 2008/0091512 Al; published April 17, 2008). Final Action
13-30.
Claims 28 and 30 stand rejected under pre-AIA 35 U.S.C. § I03(a) as
being unpatentable over Elliott, Marci, and Odom (U.S. Patent 6,606,102
B 1; published August 12, 2003). Final Action 30-32.
Claim 42 stands rejected under pre-AIA 35 U.S.C. § I03(a) as being
unpatentable over Elliott, Marci, and Landress (U.S. Patent Application
Publication 2003/0191816 Al; published October 9, 2003). Final Action
32-35.
Claim 59 stands rejected under pre-AIA 35 U.S.C. § I03(a) as being
unpatentable over Elliott, Marci, and Edwards (U.S. Patent 7,881,493 Bl;
issued February 1, 2011). Final Action 35-37.
ANALYSIS
Rather than reiterate the arguments of Appellants and the Examiner,
we refer to the Appeal Brief (filed June 1, 2017), the Reply Brief (filed
December 5, 2017), the Final Action (mailed December 1, 2016) and the
Answer (mailed October 5, 2017) for the respective details.
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35 U.S.C. §101 rejection
The Examiner determines the claims are patent ineligible under
35 U.S.C. § 101 because the claims are directed to an abstract idea
comprising a fundamental economic practice or organizing human activity,
and do not include additional elements that are sufficient to amount to
significantly more than the abstract idea. Final Action 8-12, Answer 2---6;
see also Alice Corp. Pty. Ltd. v. CLS Banklnt'l, 573 U.S. 208,217 (2014)
( describing the two-step framework "for distinguishing patents that claim
laws of nature, natural phenomena, and abstract ideas from those that claim
patent-eligible applications of those concepts").
After the mailing of the Answer and the filing of the Briefs in this
case, the US PTO published revised guidance on the application of§ 101.
2019 Revised Patent Subject Matter Eligibility Guidance, 84 Fed. Reg. 50
(Jan. 7, 2019) (hereinafter "Memorandum"). Under the Memorandum, the
Office first looks to whether the claim recites:
(1) any judicial exceptions, including certain groupings of
abstract ideas (i.e., mathematical concepts, certain methods of
organizing human activity such as a fundamental economic
practice, or mental processes); and
(2) additional elements that integrate the judicial exception into
a practical application (see MPEP § 2106.05(a}-(c), (e}-(h)).
Only if a claim (1) recites a judicial exception and (2) does not integrate
that exception into a practical application, does the Office then look to
whether the claim:
(3) adds a specific limitation beyond the judicial exception that
are not "well-understood, routine, conventional" in the field (see
MPEP § 2106.05(d)); or
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( 4) simply appends well-understood, routine, conventional
activities previously known to the industry, specified at a high
level of generality, to the judicial exception.
See Memorandum.
We are not persuaded the Examiner's rejection is in error. We adopt
the Examiner's findings and conclusions as our own, and we add the
following for emphasis and clarification with respect to the Memorandum.
idea:
Appellants argue the pending claims are not directed to an abstract
Instead, the pending claims are directed to, inter alia, methods, a
computer program product, and a computer system capable of
collecting and analyzing mental state data, and then optimizing a
media presentation as a function of mental state information
derived from the mental state data, wherein the optimizing
includes optimizing the media presentation for a mobile platform
as well as several explicitly recited operations such as developing
norms and calculating an expressiveness score that is used to
optimized the media presentation.
Reply Brief 6.
We agree with the Examiner's determination that the claims are
directed to an abstract idea. See Final Action 8-9; Answer 2--4. Claim 1
recites a method of "collecting mental state data from a plurality of people as
they view a media presentation" and then "analyzing the mental state data to
produce mental state information." The claim recites the abstract idea of
concepts performed in the human mind including observation, evaluation,
judgement, and opinion. See Memorandum, Section I (Groupings of
Abstract Ideas); see also Specification ,r,r 22, 23, 30 and 37-39.2
2 See also Elec. Power Grp., LLC v. Alstom S.A., 830 F.3d 1350, 1353 (Fed.
Cir. 2016) (holding that "collecting information, analyzing it, and displaying
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Appellants argue:
In Appellant's Specification, Appellant provides additional
details that should be treated as an indication that the pending
claims are directed to an improvement in computer-related
technology in view of McRO, Inc. v. Bandai Namco Games Am.
Inc., i.e., that: (1) "the valence quotient ranges from -1 to+ I-
using such a scale, a negative valence quotient represents
negative feelings toward the media presentation and a positive
valence quotient represents positive feelings toward the media
presentation;" (2) the "media presentation may be optimized to
keep the valence quotient away from zero and to minimize
indifference toward the media presentation;" (3) "the valence
quotient [ can be computed by] calculating an area-under-the-
curve (AUC) value for the valence quotient and/or calculating
error bars on the valence quotient;" and ( 4) the "aggregation,
AUC, and/or error bars may be used to guide the optimization
and to help understand the validity of the calculated valence
quotient" (Appellant's Specification, [0028], callout numbers
omitted). Computer-implemented steps executed as a function of
mathematical calculations provide for the actual transformation
of a media presentation into a different media presentation.
These steps are outside the capability of human mental function.
Reply Brief 9.
We do not find Appellants' argument persuasive. Claim 1 does not
recite an additional element or elements that reflect an improvement in the
functioning of a computer, or an improvement to other technology or
technical field. See Final Action 10 ("The claims address a business
challenge (collecting viewer feedback to optimize media) that is not
particular to the internet. In addition, this business challenge is not a
certain results of the collection and analysis" are "a familiar class of claims
'directed to' a patent-ineligible concept"); see also In re TL! Commc'ns LLC
Patent Litig., 823 F.3d 607, 611 (Fed. Cir. 2016); FairWarning IP, LLC v.
Iatric Sys., Inc., 839 F.3d 1089, 1093-94 (Fed. Cir. 2016).
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problem specifically arising in the realm of computer networks."); Alice, 573
U.S. at 222 ("In holding that the process was patent ineligible, we rejected
the argument that 'implement[ing] a principle in some specific fashion' will
'automatically fal[l] within the patentable subject matter of§ 101. "'
(alterations in original) (quoting Parker v. Flook, 437 U.S. 584, 593
(1978))).
Accordingly, we determine the claim does not integrate the judicial
exception into a practical application. See Memorandum, Section III(A)(2)
(Prong Two: If the Claim Recites a Judicial Exception, Evaluate Whether the
Judicial Exception Is Integrated Into a Practical Application). Nor do we
find the claim includes a specific limitation or a combination of elements
that amounts to significantly more than the judicial exception itself. See
Memorandum, Section III(B) (Step 2B: If the Claim Is Directed to a Judicial
Exception, Evaluate Whether the Claim Provides an Inventive Concept); see
also Aatrix Software, Inc. v. Green Shades Software, Inc., 890 F.3d 1354,
1359 (Fed. Cir. 2018) (Moore, J., concurring) ("the 'inventive concept'
cannot be the abstract idea itself').
Appellants argue, "the examiner alleges that optimizing a media
presentation is 'a fundamental, well-known process' that 'includes basic
fundamental and well-known methods' (Office Action, page 9). These
erroneous allegations are not supported with facts or references and do not
sustain or support a§ 101 rejection." Appeal Brief 17. Appellants further
argue:
In contrast, the claims at issue in the Appeal, when considered as
a whole, are very clearly not directed exclusively to "routine,"
"long prevalent," and "conventional" ideas or to an ordered
combination of steps reciting an abstraction having no concrete
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or tangible form. Rather, the present claims describe a specific
way ( see independent claims and corresponding discussion in
Appellant's Specification) to solve a specific problem (see
Appellant's Specification, e.g., paragraphs [0017-0021]), rather
than merely claiming the idea of a solution or outcome, and thus
are not directed to an abstract idea (see McRO, Inc. v. Bandai
Namco Games Am. Inc., 120 U.S.P.Q.2d 1091 (Fed. Cir. 2016)).
Reply Brief 4.
The Examiner finds:
As an example, the Edwards reference ( cited in the § 103
rejection section) was filed in 2004 and has a passage that states
that "a movie plot can be modified based on reactions from the
audience viewing the movie" (Edwards: Column 12, Lines 63-
65). This idea of optimizing media based on observed audience
reaction is such a fundamental and well-known process that
nearly every producer of media has long been collecting and
analyzing data on the reactions of their audience and using this
data to guide their media alterations.
Answer 30.
We do not find Appellants' argument persuasive. Other than the
abstract idea itself, the remaining claim elements only recite generic
computer components that are well-understood, routine, and conventional.
See Alice, 573 U.S. at 226. Accordingly, we agree with the Examiner that
claims 1, 5-8, 10, 12, 18-21, 23, 24, 28, 30, 34, 42--44, 46, 48, 53---60, 62
and 63, not argued separately, are not patent eligible. See Appeal Brief 17
("The claims all meet 35 USC§ 101 requirements. The examiner's
rejections under 35 U.S.C. § 101 are improper and should be reversed.").
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35 U.S.C. §103 rejections
Claims 1, 5---8, 10, 12, 18-21, 23, 24, 34, 43, 44, 46, 48, 53-58, 60, 62
and 63
Appellants contend "[ n ]ever in the cited Elliott art, and particularly,
never in the 11 paragraphs and two figures cited by the examiner ... , does
the cited art even potentially mention 'analyzing the mental state data to
produce mental state information' (Independent claim 1 )," and, therefore,
"[t]his is clearly an erroneous rejection, because monitoring a response
action is unrelated to actively analyzing mental state data to produce mental
state information." Appeal Brief 18. Appellants further contend,
"[a]dditionally, because this claim element is in the base claims, and because
the examiner never cites any other art disclosing this claim element, Elliott
in view of Marci, alone or in combination, cannot support or sustain the
examiner's § 103 rejection." Appeal Brief 18. Marci discloses: "The
present invention is directed to a method and system for measuring the
biologically based responses of an audience to a presentation that provides
sensory stimulating experience and determining a measure of the level and
pattern of engagement of that audience to the presentation." Marci,
Abstract. The Examiner finds, and we agree, "[t]he claims contain no
further limitations to the scope of 'mental state information' or further
limitations to the scope of the 'analyzing' utilized to produce mental state
information," and "[b ]ased on the claim limitations and broadest reasonable
interpretation, mental state data is any data that indicates mental state."
Answer 3 1. The Examiner finds Marci "teaches calculating an
expressiveness score for the media presentation which is based on total
movement for faces of the plurality of people and using the expressiveness
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score in the optimizing of the media presentation." Final Action 15;
Answer 8. We agree Marci's biological based responses are indicative of
the vast encompassing mental state limitations recited in the claims.
Accordingly, we sustain the obviousness rejection of claims 1, 5-8, 10, 12,
18-21, 23, 24, 34, 43, 44, 46, 48, 53-58, 60, 62 and 63, not argued
separately. Appeal Brief 18.
Claims 2 8 and 3 0
Appellants argue "[ t ]he examiner errs in trying to tie the valence
claimed by the appellant in dependent claims 28 and 30 to the valence
described in the cited Odom art" because "Odom describes the
'encapsulation of user interest and disinterest (valence) based upon selection
or absence of selection of content,"' however, "explicit user action is
turned into a valence, which is fundamentally different from collected and
analyzed mental state data determining a valence quotient." Appeal
Brief 18-19 (citations omitted). Support for the claimed valance limitation
is found in the Specification: "Other physiological data may also be useful in
determining valance and/ or determining mental states, the data including
gestures, eye movement, sweating, galvanic skin response ( GSR), heart rate,
and blood pressure, among others." Specification ,r 20. The Specification
does not clearly define valance nor does the Specification limit the scope of
valence to the narrow interpretation argued by Appellants. Accordingly, we
do not find Appellants' arguments persuasive because they are not
commensurate with the scope of the claims. See Answer 34 ("There are no
claim limitations that indicate that mental state data cannot include explicit
user action.").
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Claim 42
Claim 42 is reproduced below:
42. The method of claim 1 wherein the optimizing selects one
preamble for the media presentation from multiple possible
preambles.
Appellants argue: "It must be noted that this content is distinct and
separate from the media presentation and not a preamble of a media
presentation. Furthermore, the cited Landress art never mentions 'analyzing
the mental state data to produce mental state information' (Independent
claim 1 ). " Appeal Brief 19. The Examiner relied upon Elliott to disclose
the claimed mental state as discussed above. Support for the claimed
preamble limitation is found in the Specification: "In some embodiments,
the optimizing separates a preamble from a remainder of the media
presentation. In some embodiments, the optimizing selects one preamble for
the media presentation from multiple possible preambles." Specification
,r 29. Landress discloses "optimizing the placement of a dynamic range of
media content to be assembled on demand and delivered in real-time,"
wherein the content may contain promotional leaders and trailers that may
be customized based upon the users preference. Landress ,r,r 3, 73 and 127.
Accordingly, we agree with the Examiner's findings that Landress in
combination with Elliott and Marci discloses optimizing/customizing media
content by selecting a preamble/leader. See Final Action 33.
Claim 59
Appellants argue in regard to Edwards that "[i]t is critical to note that
modifying content to be less complex is different from 'removing portions"'
and "[ r ]emoving portions of content can, and often does, increase confusion
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instead of reducing it." Appeal Brief 20. Appellants further argue that
"there is nothing in the cited Edwards art that ties modification of the media
to removal of a portion of the media," and Edwards "never mentions
'analyzing the mental state data to produce mental state information'
(Independent claim 1)." Appeal Brief 20. As noted above, the Examiner
relies on Elliott to disclose the mental state aspect of the claimed invention.
Edwards discloses that "a movie plot can be modified based on reactions
from the audience viewing the movie" and an application can modify the
interface or layout based upon a group's behavior or response to the
interface or layout. Edwards, column 12, lines 63---67; column 13, line 1.
Edwards further discloses that the visual components viewed by the
audience "can be maintained or enhanced while the other components can be
removed or minimized." Edwards, column 13, lines 5-7. Accordingly, we
agree with the Examiner's findings that Edwards in combination with Elliott
and Marci discloses optimizing/customizing media presentation by removing
confusion portions. See Final Action 35-37.
DECISION
The Examiner's nonstatutory subject matter rejection of claims 1, 5-8,
10, 12, 18-21, 23, 24, 28, 30, 34, 42--44, 46, 48, 53-60, 62 and 63 is
affirmed.
The Examiner's obviousness rejections of claims 1, 5-8, 10, 12,
18-21, 23, 24, 28, 30, 34, 42--44, 46, 48, 53-60, 62 and 63 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)(l ). See 37 C.F.R.
§ 1.136(a)(l )(v).
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AFFIRMED
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