Ex Parte Flinn et al

Patent Trial and Appeal Board

Aug 30, 2016

13269958 (P.T.A.B. Aug. 30, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/269,958 10/10/2011
53928 7590 08/31/2016
MANYWORLDS, INC
IP DEPARTMENT
5476 BRIDLE CREEK LANE
BRENHAM, TX 77833
FIRST NAMED INVENTOR
Steven Dennis Flinn
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.
Many-09Al 4673
EXAMINER
BOYCE, ANDRE D
ART UNIT PAPER NUMBER
3623
MAILDATE DELIVERY MODE
08/31/2016 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 STEVEN DENNIS FLINN and
NAOMI FELINA MONEYPENNY
Appeal2014-004567
Application 13/269 ,95 81
Technology Center 3600
Before JOSEPH A. FISCHETTI, BRUCE T. WIEDER, and
KENNETH G. SCHOPPER, Administrative Patent Judges.
WIEDER, Administrative Patent Judge.
DECISION ON APPEAL
This is a decision on appeal under 35 U.S.C. § 134 from the
Examiner's rejection of claims 1-20. We have jurisdiction under
35 U.S.C. § 6(b).
We AFFIRM-IN-PART.
CLAIMED SUBJECT MATTER
Appellants' claimed "invention relates to extending the business
process paradigm so as to make processes more explicitly adaptive over
time." (Spec. 1, 11. 8-9.)
1 According to Appellants, the real party in interest is ManyWorlds, Inc.
(Appeal Br. 3.)
Appeal2014-004567
Application 13/269,958
Claims 1, 10, and 19 are the independent claims on appeal. Claim 1 is
illustrative and is reproduced below:
1. A method, comprising:
providing a representation of a physical site layout through
use of a mobile processor-based device, wherein the
representation of the physical site layout comprises a
representation of a plurality of physical objects and their
arrangement within a building, wherein the representation of the
physical site layout is not generated based on a physical location
behavior of a user; and
receiving a recommendation on a processor-based device,
wherein the recommendation is generated in accordance with a
plurality of usage behaviors and the representation of the
physical site layout, wherein the recommendation comprises a
first product.
REJECTIONS
Claims 1, 2, and 4--20 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over Ruckart (US 7,324,963 Bl, iss. Jan. 29, 2008) and Robarts
(US 7,073,129 Bl, iss. July 4, 2006).
Claim 3 is rejected under 35 U.S.C. § 103(a) as being unpatentable
over Ruckart, Robarts, and Official Notice "that expected lifespan of a
product is old and well known." (Final Action 10.)
ANALYSIS
Claims 1. 10. and 19
Appellants argue that, contrary to the Examiner's findings (see Final
Action 3--4), "nowhere ... does Robarts disclose a representation of a
physical site layout comprising a representation of a plurality of physical
objects and their arrangement in a building. As the Examiner summarized,
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Robarts merely discloses information associated with a physical
environment, such as surrounding objects, pertaining to a user's present
location." (Appeal Br. 11.)
Robarts discloses "techniques for filtering received information based
on the user's current context." (Robarts, col. 4, 11. 15-16.) This "current
context" information includes information that represents the "surrounding
environment." (Id. at col. 4, 11. 19-22.) The system disclosed in Robarts
"can track the user's context by monitoring various environmental
parameters, such as related to the user's physical, mental, computing and
data environments, and can model the current context of the user based at
least in part on the monitoring." (Id., Abstract.) Specifically, Robarts
discloses that "[i]n some embodiments, various environmental aspects
(e.g., ... physical, computing, data, etc.) are monitored .... In other
embodiments, such information is received from other sources that perform
the monitoring and/or the modeling," i.e., the representation of the site
layout is received from sources unrelated to the location behavior of the
user. (See id. at col. 4, 11. 31-36, emphasis added.) Appellants do not
persuasively argue why Robarts disclosure of providing information
"received from other sources" that represents the "surrounding environment"
does not teach or suggest providing a representation of a physical site where
the representation is not generated based on the location behavior of the
user.
Appellants also argue that the combination of Ruckart and Robarts
"would fail to be sufficient in generating a recommendation of a product that
is in accordance with both usage behaviors and a physical site layout."
(Appeal Br. 12.)
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The Examiner finds that Ruckart discloses "receiving a
recommendation on a processor-based device" (Answer 5, citing Ruckart,
col. 4, 11. 22-24) and that Robarts discloses "wherein the recommendation is
generated in accordance with the representation of the physical site layout"
(id. at 6, emphasis omitted). Specifically, the Examiner finds that Robarts
discloses a system where a
first filter 402 might specify generic characteristics of suitable
messages, such as the product/service characteristics for
advertisements. The second filter 404 might specify user
characteristics and preferences. For instance, the user might only
want to receive advertisements while running errands. The third
filter 406 might describe certain user situations in which
messages are appropriate. In this example, the user might only
want to see or hear advertisements for products when proximally
near a store (column 15, lines 10-19).
(Answer 7.) Thus, the Examiner finds, and we agree, that, "the combination
of Ruckart and Robarts ... disclose[ s] receiving a recommendation on a
processor-based device, \~1herein the recommendation is generated in
accordance with a plurality of usage behaviors and the representation of the
physical site layout." (Id. at 6.)
In view of the above, we are not persuaded that the Examiner erred in
rejecting claim 1. Independent claims 10 and 19 contain similar language
and Appellants make similar arguments. (See Appeal Br. 22-24, 35-38.)
For the same reasons, we are not persuaded that the Examiner erred in
rejecting claims 10 and 19.
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Claims 2 and 11
Claim 2 recites: "The method of claim 1, further comprising:
providing the representation of the physical site layout through use of the
mobile processor-based device, wherein the device is location-aware."
Appellants argue that "Ruckart does not disclose wherein the device is
location-aware" and that "Robarts fails to disclose a device that is both
location-aware and that provides through its use a representation of a
physical site layout by means of other than a physical location behavior."
(Appeal Br. 13.)
The Examiner disagrees and finds that Robarts discloses a "physical
environment module 314 [that] generates information pertaining to the
user's present location (e.g., geographical, relative to a structure such as a
building, etc.), the current time, and surrounding objects within a
perceivable proximity (emphasis added, column 11, lines 30-45)."
(Answer 6, emphasis omitted.) The Examiner further finds that Robarts
discloses the use of "GPS and differential GPS devices." (Answer 6, citing
Robarts, col. 7, 11. 1-9.)
In view of the above discussion regarding claims 1 and 2, we are not
persuaded that Robarts fails to disclose a device that is "location-aware" and
provides "a representation of a physical site layout by means of other than a
physical location behavior." Claim 11 contains similar language and
Appellants make similar arguments. (See Appeal Br. 24--25.) Therefore, we
are not persuaded that the Examiner erred in rejecting claims 2 and 11.
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Claims 4 and 13
Claim 4 recites: "The method of claim 1, further comprising:
receiving the recommendation, wherein the recommendation comprises a
bundle, the bundle comprising the first product and a second product,
wherein the second product is recommended in accordance with the first
product and the representation of the physical site layout."
Appellants argue that the Examiner's citation ofRobarts (col. 15,
11. 10-19) does not disclose this limitation. (Appeal Br. 15.) "This citation
of Robarts merely discloses that multiple filtering criteria may be applied to
messages, which would not be interpreted by one of ordinary skill in the art
as disclosing recommending a second product in accordance with the first
product and the representation of the physical site layout." (Id.)
As discussed above, Robarts discloses a "third filter 406 might
describe certain user situations in which messages are appropriate. In this
example, the user might only want to see or hear advertisements for products
when proximally near a store (column 15, lines 10-19)." (Answer 7,
emphasis omitted.) In other words, Robarts discloses a filter that provides
for presentation to the user products that share some attributes recognized by
the filter, i.e., those products are in accord at least with respect to certain
attributes, including the site layout.
Therefore, we are not persuaded that the Examiner erred in rejecting
claim 4. Claim 13 contains similar language and Appellants make similar
arguments. (See Appeal Br. 27-29.) For the same reasons, we are not
persuaded that the Examiner erred in rejecting claim 13.
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Claims 5 and 14
Claim 5 recites: "The method of claim 4, further comprising:
receiving a price corresponding to the bundle."
Appellants rely on the arguments presented with regard to claims 1
and 4. (See id. at 15-16.) For the reasons discussed above with regard to
claims 1 and 4, we are not persuaded that the Examiner erred in rejecting
claim 5. Claim 14 contains similar language and Appellants make a similar
argument. (See id. at 29.) For the same reasons, we are not persuaded that
the Examiner erred in rejecting claim 14.
Claims 6 and 15
Claim 6 recites: "The method of claim 1, further comprising:
receiving the recommendation, wherein the recommendation is generated in
accordance with the location of at least one of the plurality of physical
objects."
Appellants argue that
Robarts only teach[ es] determining location of physical objects
in the context of proximity to a user. The invention of claim 6
specifically recites a representation of the arrangement of
physical objects in the absence of user locational context, and
therefore it is inherently contradictory to interpret that Robarts
teaches the claim limitation, "receiving the recommendation,
wherein the recommendation is generated in accordance with the
location of at least one of the plurality of physical objects," since
the antecedent claim element of claim 6 specifies that it is
performed without the context of a user location.
(Id. at 1 7.) In other words, Appellants argue that the recommendation is
received "without the context of a user location."
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Claim 6 depends from and includes all of the limitations of claim 1.
Under a broadest reasonable interpretation, it is "the representation of the
physical site layout [that] is not generated based on a physical location
behavior of a user." (Claim 1.) Additionally, it is "the recommendation
[that] is generated in accordance with [ 1] a plurality of usage behaviors and
[2] the representation of the physical site layout." (Id.) Under a broadest
reasonable interpretation, "a plurality of usage behaviors" may include, as
described in claim 1, "a physical location behavior of a user." Therefore, a
recommendation may be generated (and received) in accordance with a
usage behavior (that includes a physical location behavior of the user) and a
representation of the physical site layout (which is not generated based on a
physical location behavior of a user). Thus, Appellants' argument that the
recommendation is received "without the context of a user location," is not
commensurate with the scope of the claim and is not persuasive of error.
Claim 15 contains similar language and Appellants make a similar argument.
(See Appeal Br. 30-31.) For the same reason, we are not persuaded that the
Examiner erred in rejecting claim 15.
Claims 7 and 12
Claim 7 recites: "The method of claim 1, further comprising:
receiving the recommendation, wherein the recommendation is based on an
inference of a preference that is based on the plurality of usage behaviors,
wherein the plurality of usage behaviors are associated with a plurality of
users."
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Appellants argue that the portions of Ruckart cited by the Examiner
fail to teach or suggest the subject claim element as evidenced by
the use of the singular and singular possessive, "customer" and
"customer's" in the cited disclosures of Ruckart - that is, unlike
the subject claim element, Ruckart only discloses using the
behaviors of a specific customer to predict the products that that
same customer is likely to use. Therefore, the cited art does not
teach or suggest, "receiving the recommendation, wherein the
recommendation is based on an inference of a preference that is
based on the plurality of usage behaviors, wherein the plurality
of usage behaviors are associated with a plurality of users."
(Id. at 19.)
The Examiner finds that Ruckart discloses presenting questions to a
customer and, using "standard statistical methods and software techniques,"
predicting products the customer is likely to use. (Answer 8, citing Ruckart
col. 3, 63 - col. 4, 1. 4.) The Examiner also finds that "Ruckart discloses one
object of the invention is to allow customers to select a combination of
goods and services from an array of goods and services offered by a
vendor." (Id. at 9, emphasis omitted, citing Ruckart, col. 2, 11. 5-19.)
However, the Examiner does not explain where Ruckart discloses that
the prediction of products a customer is likely to use is based on "an
inference of a preference that is based on the plurality of usage behaviors,
wherein the plurality of usage behaviors are associated with a plurality of
users" (claim 7, emphasis added), as opposed to being based on the
individual customer's responses to the questions presented.
Therefore, we are persuaded that the Examiner erred in rejecting
claim 7. Claim 12 contains similar language and, for the same reasons, we
are persuaded that the Examiner erred in rejecting claim 12.
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Claims 8 and 16
Claim 8 recites: "The method of claim 1, further comprising:
receiving the recommendation in response to a search request."
The Examiner finds that "Ruckart discloses the act of clicking on the
name of a product or an image of a product opens an additional window
containing more detailed information about the product." (Answer 9, citing
Ruckart, col. 3, 11. 54---60). The Examiner further finds that Ruckart
discloses a "web page [that] displays several questions regarding the
customer's current or intended usage of the available products. After
answering the questions, the customer clicks a button that submits the
answers, ... and the server 109 conveys recommendations for products to
the customer's terminal." (Id. at 9--10, emphasis omitted, citing Ruckart,
col. 3, 11. 63----67, col. 4, 11. 22-28.)
Appellants do not persuasively argue why Ruckart's disclosure of a
guided search request, i.e., providing questions to the user, is not a search
request under a broadest reasonable interpretation of the term. Therefore,
we are not persuaded that the Examiner erred in rejecting claim 8. Claim 16
contains similar language and Appellants make similar arguments. (See
Appeal Br. 31-33.) For the same reasons, we are not persuaded that the
Examiner erred in rejecting claim 16.
Claims 9 and 18
Claim 9 recites: "The method of claim 1, further comprising:
receiving information that provides a reason to the recommendation
recipient as to why the recommendation was delivered to the
recommendation recipient."
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Appellants argue that "Ruckart fails to teach or suggest providing a
reason to the recommendation recipient as to why the recommendation was
delivered to the recommendation recipient." (Id. at 21, emphasis omitted.)
The Examiner finds that Ruckart discloses receiving information from
the customer in response to questions presented and using that information
to make recommendations. (See Final Action 8.) However, the Examiner
does not indicate where Ruckart discloses providing a reason to the customer
as to why the recommendation was delivered.
Therefore, we are persuaded that the Examiner erred in rejecting
claim 9. Claim 18 contains similar language and, for the same reasons, we
are persuaded that the Examiner erred in rejecting claim 18.
Claim 17
Claim 1 7 recites: "The system of claim 10, further comprising: the
recommendation function, wherein the recommendation function generates
the recommendation in response to the user's gesture."
Appellants argue that
[t]he Examiner cited Robarts col. 11 lines 46-55 as disclosing
the limitation. However, while the cited disclosures includes
pupil tracking and head orientation sensors, such attention
behaviors are specifically distinguished from gestures in the
Specification at page 20 line 25 - page 21 line 14. Therefore, in
view of the Specification, as well as a dictionary definition of
gesture, which implies a conscious and meaningful movement, it
is not reasonable to posit that one of ordinary skill in the art at
the time of the invention would interpret the cited disclosures of
Robarts as teaching the limitation, "wherein the recommendation
function generates the recommendation in response to the user's
gesture."
(Appeal Br. 34.)
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The Specification recites that "[a] sixth category of process usage
behaviors is known as attention behaviors." (Spec. 20, 11. 25-26.) "[T]he
direction of visual gaze" is recited as an example of an attention behavior.
(Id., 11. 27-28.) The Specification further recites that "[a]ttention behaviors
may include any other type of physiological response of a process
participant" and that "[ o ]ther physiological responses may include, but are
not limited to, utterances, gestures, movements, or body position." (Id. at
21, 11. 11-12.)
To the extent Appellants are arguing that "utterances, gestures,
movement, or body position" are unique categories, i.e., that there is no
overlap between categories, we disagree. For example, a user intentionally
moving her hand may be performing a gesture, a movement and a change in
body position. Appellants do not point to anything in the Specification that
excludes head movements from the general category of movements. (See
Appeal Br. 33-34.) Moreover, Robarts discloses tracking head orientation,
i.e., head movement. (Robarts, col. 11, 11. 52-55.) Appellants do not
indicate why Robarts tracking of head movements would not include
tracking "conscious and meaningful" head movements.
Therefore, we are not persuaded that the Examiner erred in rejecting
claim 17.
Claim 20
Claim 20 recites: "The device of claim 19, further comprising a
processor configured to deliver the recommendation in accordance with a
proximity of a first physical object of the plurality of physical objects to a
second physical object of the plurality of physical objects."
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Appellants argue that "[t]he Examiner stated that the rejection of
claim 20 was based on the same rationale as claim 6 (Final Office Action
page 10 paragraph 1 ), and Appellants' arguments will therefore parallel the
arguments made with respect to claim 6." (Appeal Br. 39.)
Appellants' arguments parallel the arguments made with respect to
claim 6 and for the reasons discussed above with regard to claim 6, we are
not persuaded that the Examiner erred in rejecting claim 20.
Claim 3
Claim 3 recites: "The method of claim 1, further comprising:
receiving the recommendation, wherein the recommendation is further
generated in accordance with an expected lifespan of a product."
The Examiner determines that
[i]t would have been obvious to one of ordinary skill in the art at
the time the invention was made to include wherein the
recommendation is fi1rther generated in accordance \'l1ith an
expected lifespan of a product in Ruckart, since the claimed
invention is merely a combination of old elements, and in the
combination each element merely would have performed the
same function as it did separately, and one of ordinary skill in the
art would have recognized that the results of the combination
were predictable.
(Final Action 10.)
Appellants argue that the statistical methods of Ruckart "would fail to
be sufficient in generating a recommendation that is in accordance with both
[sic] usage behaviors, a physical site layout, and an expected lifespan of a
product." (Appeal Br. 41.) But this is attacking Ruckart individually.
Nonobviousness is not established by attacking references individually when
the rejection is based on a combination of references. See In re Merck &
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Co., 800 F.2d 1091, 1097 (Fed. Cir. 1986). A reference "must be read, not
in isolation, but for what it fairly teaches in combination with the prior art as
a whole." Id.
Appellants next argue that the
Examiner's assertion that the results of the combination would
be recognized as predictable is also untenable, since behavioral
information, physical site layout, and expected lifespan of a
product information represent three fundamentally different
types of inputs on which to base product recommendations, and
hence the results of generating a product recommendation from
the combination of these disparate types and sources of
information would not be predictable to one having ordinary skill
in the art at the time of the invention.
(Appeal Br. 41.) In other words, Appellants argue that because three
different types of product information are input, it would not have been
predictable to generate a product recommendation therefrom. But
Appellants do not explain why it would not have been predictable to
generate a product recommendation from three different types of
information related to the product. Therefore, we are not persuaded that the
Examiner erred in rejecting claim 3.
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DECISION
The Examiner's rejections of claims 1---6, 8, 10, 11, 13-17, 19, and 20
under 35 U.S.C. § 103(a) are affirmed.
The Examiner's rejection of claims 7, 9, 12, and 18 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)(l )(iv)(2013).
AFFIRMED-IN-PART
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