Ex Parte Gruttadauria et alDownload PDFPatent Trial and Appeal BoardFeb 28, 201711639783 (P.T.A.B. Feb. 28, 2017) Copy Citation 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. 11/639,783 12/15/2006 Matthew K. Gruttadauria 64103282US02 6571 23556 7590 02/28/2017 KIMBERLY-CLARK WORLDWIDE, INC. Patent Docketing 2300 Winchester Rd. NEENAH, WI54956 EXAMINER STERRETT, JONATHAN G ART UNIT PAPER NUMBER 3623 MAIL DATE DELIVERY MODE 02/28/2017 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 MATTHEW K. GRUTTADAURIA, GREGORY A. PELEGRIN, MICHAEL J. NELSON, and MARK EDWARDS Appeal 2015-003376 Application 11/639,7831 Technology Center 3600 Before, JOSEPH A. FISCHETTI, MICHAEL C. ASTORINO, and ROBERT J. SILVERMAN, Administrative Patent Judges. FISCHETTI, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Appellants seek our review under 35 U.S.C. § 134 of the Examiner’s final rejection of claims 15—29 and 31—36. We have jurisdiction under 35 U.S.C. § 6(b). SUMMARY OF DECISION We AFFIRM. 1 Appellants identify Kimberly-Clark Worldwide, Inc. as the real party in interest. Br. 1. Appeal 2015-003376 Application 11/639,783 THE INVENTION Appellants claim a system for designing shopping environment. Spec. 1, Title. Claim 15 reproduced below, is representative of the subject matter on appeal. 15. A shopping environment design system comprising: a computing environment; a virtual reality system operatively associated with the computing environment and configured to produce a virtual reality shopping environment according to at least one three- dimensional image of a shopping environment, the three- dimensional image including design elements selected from one or more of store layout, aisle configuration, aisle appearance, shelf layout, product displays and product placement on shelves; wherein the shopping environment includes an activity-based theme area; a design element modifying tool configured to modify the design elements, whereby the virtual reality shopping environment is changed; and a consumer response measurement tool configured to measure responses of a user interacting with the virtual reality shopping environment, the consumer response measurement tool is at least one of a vision system, simulation viewer, biofeedback monitor, and computerized facial analysis. THE REJECTION The Examiner relies upon the following as evidence of unpatentability: Kenney US 6,381,583 B1 Apr. 30,2002 Cash US 7,146,304 B1 Dec. 5,2006 Robert V. Kozinets et al., Themed flagship brand stores in the new millennium: theory, practice, prospects, 78 Journal of Retailing 17, 17—29 (2002) (hereinafter “Kozinets”) 2 Appeal 2015-003376 Application 11/639,783 The following rejection is before us for review. Claims 15—29 and 31—36 are rejected under 35 U.S.C. § 103(a) over Kenney in view of Cash, and in further view of Kozinets. FINDINGS OF FACT 1. We adopt the Examiner’s findings as set forth on pages 3—8 of the Answer. 2. Cash discloses at Figure 16: To run a model with the animation on, the User checks the animation box 1585 before selecting the Run Simulation button 1580. This action launches the animation of the simulation scenario selected. The current version of the LFEM application using an application from System Modeling Corporation called Arena Viewer™ to run the simulation scenario and display the corresponding animation. FIG. 16 illustrates the animation overview screen of the FEME In animation mode, the User controls the model execution using either the file menu options or the button menu bar. (Cash, col. 18,11.21-31). 3. Kenney discloses, “The display means 12 is programmed to also include means for communicating information about the selected product to the shopper. This information communicated includes ordering information as well as other information as will become apparent below.” (Kenney, col. 6,11. 4—8). 4. Kozinets discloses “landscape themes, which employ associations to, and images of, nature, Earth, animals, and the physical body. An example would be Bass Pro Shops, with its simulation of an outdoor environment, even containing a pool stocked with fish.” (Kozinets, p. 19,11. 17—21). 3 Appeal 2015-003376 Application 11/639,783 ANALYSIS 35 U.S.C. § 103(a) REJECTION The Appellants argued independent claims 15, 29, and 36 as a group. (Appeal Br. 6). We select claim 15 as the representative claim for this group, and the remaining independent claims standing or falling with claim 15. See 37 C.F.R. § 41.37(c)(l)(iv) (2015). Appellants argue, “The meaning given to ‘simulation viewer’ in the Office Action is inconsistent with the specification. Kenney, Cash, and Kozinets, alone or in any combination, do not disclose, teach, or suggest a simulation viewer as defined in the specification.” (Br. 5). We disagree with Appellants. Appellants’ Specification does not specifically define the term “simulation viewer,” nor does it utilize the term contrary to its customary meaning. The ordinary and customary definition of the term “viewer” is, “an optical device used in viewing.”2 The Examiner found that “Column 2 line 25-30, Cash' [sic] model measures customer interaction with a store front end (i.e. front end effectiveness model (LFEM). Figure 16 of Cash shows a simulation viewer (i.e. output of a simulation).” (Final Act. 8). The Examiner also found, alternatively, that “[t]he device or interface used by the shopper in Kenny is a ‘simulation viewer’ in that it is used by the shopper to view the virtual reality simulation.” (Answer 5). We find no error with the Examiner’s construction of the term, “simulation viewer”, because the output disclosed in Figure 16 of Cash 2 https://www.merriam-webster.com/dictionary/viewer (last visited 2/14/2017). 4 Appeal 2015-003376 Application 11/639,783 (FF. 2), as well as that disclosed by the display means 12 in Kenney (FF. 3) are output devices used for viewing. We are further unpersuaded by Appellants’ argument that “Cash shows the output of a store check-out simulation, and, as acknowledged in the Office Action, uses virtual customers and therefore cannot monitor the actions of a participant” (Appeal Br. 5), because Appellants are attacking the reference individually when the rejection is based on a combination of references and Kenney discloses the use of a participant (FF. 3). See In re Keller, 642 F.2d 413, 426 (CCPA 1981); In re Young, 403 F.2d 754, 757-58 (CCPA 1968). Concerning Kozinets, Appellants argue that, A retail environment directed towards a consumer having an entertaining experience while in that retail environment is not the same as a physical grouping of saleable products within a shopping environment which have been identified and grouped together based upon the activity associated with the usage of the products, i.e. an activity-based theme area as defined and exemplified in the present application. (Appeal Br. 6). We decline to give the term “activity based theme area” the definition which Appellants argue above. Appellants’ Specification does not specifically define the term “activity based theme area”3, nor does it utilize the term contrary to its customary meaning. The ordinary and customary definition of the word “activity” is “producing or involving action or 3 We note that page 5 of the Specification while headed “DEFINITIONS”, lists only “activity based themes” and discusses it only in terms of “refers to” which terms we do not consider to call for an explicit definition. Notwithstanding, we find that the Bass Pro Shops example in Kozinets, using a fish pond area, would meet the description of an activity associated with usage of the product in that one having ordinary skill in the art would know to locate items like fishing poles and hooks in that area. 5 Appeal 2015-003376 Application 11/639,783 movement.”4 The ordinary and customary definition of the word “area” is “a particular extent of space or surface or one serving a special function: such as a\ a part of the surface of the body.”5 Thus, we find no error in the Examiner’s finding that an outdoors themed area with a simulation of an outdoor environment, containing a pool stocked with fish, meets the claim requirement of an activity based theme area because, at the very least, it involves the movement of fish in the pond. We also affirm the rejections of dependent claims 16—28 and 31—35 since Appellants have not challenged such with any reasonable specificity {see In re Nielson, 816 F.2d 1567, 1572 (Fed. Cir. 1987)). CONCFUSIONS OF FAW We conclude the Examiner did not err in rejecting claims 15—29 and 31—36 under 35 U.S.C. § 103. DECISION The decision of the Examiner to reject claims 15—29 and 31—36 is 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). See 37 C.F.R. § 1.136(a)(l)(iv). AFFIRMED 4 https://www.merriam-webster.com/dictionary/activity (last visited 2/14/2017). 5 https://www.merriam-webster.com/dictionary/area (last visited 2/14/2017) 6 Copy with citationCopy as parenthetical citation