Ex Parte Huang et al

Board of Patent Appeals and Interferences

Jan 10, 2012

11556322 (B.P.A.I. Jan. 10, 2012)

UNITED STATES PATENT AND TRADEMARK OFFICE
__________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
__________

Ex parte KELLY HUANG, NIKIFOROS KOLLIAS,
ELLEN KURTZ, KATHARINE MARTIN,
FLORENCE GROSSMAN, and ARTHUR PELLEGRINO
__________

Appeal 2011-004972
Application 11/556,322
Technology Center 1600
__________

Before LORA M. GREEN, FRANCISCO C. PRATS, and
MELANIE McCOLLUM, Administrative Patent Judges.

GREEN, 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, 2, 4-6, and 8. We have jurisdiction under
35 U.S.C. § 6(b).
Appeal 2011-004972
Application 11/556,322

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STATEMENT OF THE CASE
Claim 1 is representative of the claims on appeal, and reads as
follows:
1. A method of measuring the efficacy of a skin treatment program on
human skin, the method comprising:
a. accessing a multiplicity of photographic images of human faces,
each image having associated with it a chronological age of the human
whose likeness it captures;
b. assessing the multiplicity of photographic images of human faces
for a facial parameter selected from the group consisting of crow’s feet,
nasolabial folds, under eye wrinkles, and combinations thereof;
c. scoring the facial parameter on each image according to a scoring
system to create a parameter score for each image;
d. correlating the parameter scores to the chronological ages to obtain
an age parameter correlation;
e. scoring an untreated subject human face for the facial parameter to
obtain a subject baseline parameter score;
f. treating the subject human face with a skin treatment program;
g. scoring the treated subject human face for the facial parameter to
obtain a subject treatment parameter score;
h. determining the difference between the subject baseline parameter
score and the subject treatment parameter score to obtain a treatment score
difference; and
i. comparing the treatment score difference with the age-parameter
correlation to determine a constructive age change of the human face
effected by treatment of the human face with the skin treatment program.

The following ground of rejection is before us for review:
Claims 1, 2, 4-6, and 8 stand rejected under 35 U.S.C. § 103(a) as
being rendered obvious by the combination of Wallo1 and Hillebrand.2 As

1 Wallo et al., US Patent Publication No. 2002/0181752 A1, published
Dec. 5, 2002.
2 Hillebrand et al., US 6,571,003 B1, issued May 27l, 2003.
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Application 11/556,322

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Appellants do not argue the claims separately, we focus our analysis on
claim 1, and claims 2, 4-6, and 8 stand or fall with that claim. 37 C.F.R.
§ 41.37(c)(1)(vii)
We affirm.
ISSUE
Does the preponderance of the evidence of record support the
Examiner’s conclusion that the combination of Wallo and Hillebrand renders
the method of claim 1 obvious?

FINDINGS OF FACT
FF1. According to the Specification, the “present invention relates to a
method of measuring the efficacy of a skin treatment program on human
skin” (Spec. 1).
FF2. The Specification teaches further in the “Background of the
Invention”:
Humans are generally able to characterize a person to be
within a particular age group based on an image of the person’s
face. This characterization may be accomplished by various
means, including the instrumental measurement of age-related
changes in the skin, such as elasticity, cutaneous temperature,
replicas, and water loss. Other techniques involve the clinical
grading of photographs of human subjects by trained
professionals to establish a correlation with skin aging. These
trained professionals have been known to evaluate photographic
images for wrinkling on the forehead, at the eye corners (crow’s
feet), in the cheekbone area, and at the mouth corners.

(Id.)
FF3. We adopt the Examiner’s findings and conclusions as our own.
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Application 11/556,322

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ANALYSIS
As we agree with the Examiner’s findings of fact, as well as
conclusions and response to arguments, we affirm the Examiner’s rejection.
We also note the following.
Appellants assert that they “have surprisingly found that not all age
related parameters provide statistically significant linear relationships when
plotting clinical grades versus age categories” (App. Br. 6 (citing Spec., p.
11, first full paragraph, and Fig. 2)). Appellants assert that the disclosed
relationships between measured parameters and clinical results “provide[]
improved distinction between perceived ages of subject’s faces,” and thus,
“in order to accurately assess the efficacy of a skin care product on skin
aging and determine a constructive age change, the facial parameter scores
assessed should be crow’s feet, under eye wrinkles, nasolabial folds, and
combinations thereof, as presently claimed” (App. Br. 6). Appellants assert
that Hillebrand does not distinguish between different types of wrinkles
(id.).
Appellants’ arguments are not convincing. “[I]t is well settled that
unexpected results must be established by factual evidence. Mere argument
or conclusory statements in the specification does not suffice.” In re
De Blauwe, 736 F.2d 699, 705 (Fed. Cir. 1984). Thus, while Appellants
assert that the linear relationship is “surprising,” they have not provided any
specific evidence to that effect, nor have they provided evidence of
unexpected results. Moreover, as noted by the Examiner (Ans. 6), Wallo
teaches that the method may be used for analysis of, for example, wrinkles
of the lips, cheeks, and eyes; and Hillebrand teaches analysis of crow’s feet
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Application 11/556,322

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(corner of the eye), nasolabial folds (nose), and corners of the mouth. Thus,
both Wallo and Hillebrand teach assessing facial parameters selected from
the group consisting of crow’s feet, nasolabial folds, and under eye wrinkles,
as required by claim 1. And as noted by Appellants’ Specification, trained
professionals are “known to evaluate photographic images for wrinkling on
the forehead, at the eye corners (crow’s feet), in the cheekbone area, and at
the mouth corners” (FF2), and, thus, it would have been well within the level
of skill of the ordinary artisan to choose those facial parameters.
Appellants further argue that Hillebrand only teaches comparing an
individual to others in the same age group, but not determining a
constructive age change (App. Br. 7). Thus, Appellants assert, “Hillebrand
merely teaches where a subject’s facial score falls within a particular age
category (his or her own age), and he does not teach or suggest a method
that determines a constructive age change of the human face as claimed in
the present invention” (id.).
Appellants’ arguments are again not found to be convincing. As
noted by the Examiner (Ans. 8), Hillebrand teaches that the population data
used to determine a percentile for the normalized data may be based on a
person’s age. We further agree with the Examiner (id. at 9-10) that
comparing the before and after images to a population of people, including a
population of the same age or a different age would have been obvious to the
ordinary artisan in this art, in order to determine how a treatment improved
the patient’s score not only within their own age group, but also other age
groups, younger and/or older, and, thus, determining a constructive age
change for the patient that occurred as a result of the treatment.
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Application 11/556,322

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CONCLUSION OF LAW
We conclude that the preponderance of the evidence of record
supports the Examiner’s conclusion that the combination of Wallo and
Hillebrand renders the method of claim 1 obvious. We, thus, affirm the
rejection of claim 1 under 35 U.S.C. § 103(a) as being rendered obvious by
the combination of Wallo and Hillebrand. As claims 2, 4-6, and 8 stand or
fall with claim 1, we affirm the rejection as to those claims as well.

TIME PERIOD FOR RESPONSE
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a).

AFFIRMED

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