Ex Parte Krahnstoever et al

Patent Trials and Appeals Board

Apr 4, 2019

13221896 - (D) (P.T.A.B. Apr. 4, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/221,896 08/30/2011
62204 7590 04/08/2019
GE GLOBAL PATENT OPERATION
GE LICENSING (62204)
901 MAIN A VENUE
NORWALK, CT 06851
FIRST NAMED INVENTOR
Nils Oliver Krahnstoever
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.
251344-1
(GELC:0074/MAN)
CONFIRMATION NO.
4384
EXAMINER
SYROWIK, MATHEW RICHARD
ART UNIT PAPER NUMBER
3622
NOTIFICATION DATE DELIVERY MODE
04/08/2019 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):
rlt@zpspatents.com
docket@fyiplaw.com
gpo.mail@ge.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte NILS OLIVER KRAHNSTOEVER,
PETER HENRY TU, MING-CHING CHANG, and
WEINA GE 1
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Application 13/221,896
Technology Center 3600
Before MICHAEL J. STRAUSS, JEREMY J. CURCURI, and
PHILLIP A. BENNETT, Administrative Patent Judges.
STRAUSS, Administrative Patent Judge.
DECISION ON APPEAL
1 According to Appellant, the real party in interest is the General Electric
Company. See App. Br. 2.
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Application 13/221,896
STATEMENT OF THE CASE
Appellants appeal under 35 U.S.C. § 134(a) from a rejection of claims
6-9, 11-14, and 23-25. Claims 15-22 are withdrawn from consideration.
Claims 1-5 and 10 are canceled. We have jurisdiction under 35 U.S.C.
§ 6(b ).
We affirm. 2
THE INVENTION
The claims are directed to person tracking and interactive advertising.
Spec., Title. Claim 6, reproduced below with a disputed limitation
emphasized in italics, is representative of the claimed subject matter:
6. A method comprising:
jointly tracking gaze directions and body pose directions
independent of motion direction of persons passing an
advertising station displaying advertising content from at least
one fixed camera and a plurality of Pan-Tilt-Zoom cameras in an
unconstrained environment based on captured image data from
the at least one fixed camera and each of the plurality of Pan-
Tilt-Zoom cameras, wherein the at least one fixed camera is
configured to detect the persons passing the advertising station,
the plurality of Pan-Tilt-Zoom cameras is configured to detect
the gaze directions and body pose directions independent of
motion direction of the persons passing the advertising station;
and
processing, by a data-processing computer system
including a digital processor, the captured image data using a
combination of sequential Monte Carlo filtering and Markov
chain Monte Carlo (MCMC) sampling to infer interest levels of
2 We refer to the revised Specification, filed November 10, 2011 ("Spec.");
the Final Office Action, mailed August 26, 2016 ("Final Act."); the Appeal
Brief, filed April 13, 2017 ("App. Br."); the Examiner's Answer, mailed
July 21, 2017 ("Ans.") and the Reply Brief, filed September 21, 2017
("Reply Br.").
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the persons in the advertising content displayed by the
advertising station.
REFERENCES
The following prior art is relied upon by the Examiner in rejecting the
claims on appeal:
Shand US 2003/0126013 Al July 3, 2003
Sharma et al. US 7,921,036 Bl Apr. 5, 2011
Moon et al. US 8,219,438 Bl July 10, 2012
"Systems and algorithms for autonomously simultaneous observation
of multiple objects using robotic PTZ cameras assisted by a wide-
angle camera", IEEE, 2009, Intelligent Robots and Systems, 2009.
IROS 2009. IEEE/RSJ International Conference on Oct. 11-15,
2009 St. Louis, MO; pages 3802-3807 of Y. Xu and D. Song
(hereinafter "Xu").
"Tracking the Visual Focus of Attention for a Varying Number of
Wandering People," IEEE Transactions on Pattern Analysis and
Machine Intelligence, July 2008, vol.30, no.7, pages 1212-1229 of
Smith et al. (hereinafter "Smith").
"Tracking Gaze Direction from Far-Field Surveillance Cameras,"
IEEE, 2010, pages 519-526 of Sankaranarayanan et al. (hereinafter
"Sankaranarayanan").
REJECTIONS
The Examiner made the following rejections:
Claims 6-9, 11-14, and 23-25 stand rejected under 35 U.S.C. § 101
because the claimed invention is directed to a judicial exception without
significantly more. Final Act. 4--12.
Claims 6-9, 11, 13, 14 and 23-25 stand rejected under pre-AIA 35
U.S.C. § I03(a) as unpatentable over Sharma, Moon, Xu or
Sankaranarayanan, and Smith. Final Act. 12-21; 22-31.
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Claim 12 stands rejected under pre-AIA 35 U.S.C. § 103(a) as being
unpatentable over Sharma, Moon, Xu or Sankaranarayanan, Smith and
Shand. Final Act. 21-22; 31-32.
ANALYSIS
Patent-Ineligible Subject Matter
Appellants argue the pending claims as a group (App. Br. 6-12). We
select independent claim 6 as representative. The remaining claims stand or
fall with claim 6. See 37 C.F.R. § 4I.37(c)(l)(iv).
A. Claim Interpretation
Appellants initially contend the Examiner's interpretation of claim 6
is improper. App. Br. 8-9. In particular, the Examiner concludes the step of
processing only requires use of a combination of Monte Carlo filtering and
Markov chain Monte Carlo (MCM) sampling but that the recited filtering
and sampling need not be performed by the recited data-processing
computer system. Advisory Action, mailed January 12, 2017, p. 2.
Appellants argue "the present claims recite programmable structure having
programming including a combination of Sequential Monte Carlo filtering
and Markov chain Monte Carlo (MCMC) sampling." App. Br. 8-9.
We agree with Appellants. The disputed limitation recites
"processing, by a data-processing computer system including a digital
processor, the captured image data using a combination of sequential Monte
Carlo filtering and Markov chain Monte Carlo (MCMC) sampling to infer
interest levels of the persons in the advertising content displayed by the
advertising station." Monte Carlo filtering and MCMC sampling define
processes or steps, that is, actions, not apparatuses. "Using" is interpreted as
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"by performing" those actions. We find no indication that the processes are
to be performed "using" some system external to the recited data-processing
computer system as interpreted by the Examiner. Furthermore, our
interpretation is consistent with Appellants' disclosure describing "FIG. 3 is
a block diagram of a processor-based device or system for providing the
functionality described in the present disclosure and in accordance with an
embodiment of the present disclosure." Spec. ,r 12. Accordingly, we
interpret the disputed limitation as requiring the processing step include
performing, by a data processing system, sequential Monte Carlo filtering
and Markov chain Monte Carlo (MCMC) sampling.
B. Section 1 OJ
Addressing the substance of the rejection, under 35 U.S.C. § 101, an
invention is patent-eligible if it claims a "new and useful process, machine,
manufacture, or composition of matter." 35 U.S.C. § 101. The Supreme
Court, however, has long interpreted § 101 to include an implicit exception:
"[l]aws of nature, natural phenomena, and abstract ideas" are not patentable.
Alice Corp. v. CLS Bank Int'!, 573 U.S. 208,216 (2014).
In determining whether a claim falls within an excluded category, we
are guided by the Supreme Court's two-step framework, described in Mayo
and Alice. Id. at 217-18 ( citing Mayo Collaborative Servs. v. Prometheus
Labs., Inc., 566 U.S. 66, 75-77 (2012)). In accordance with that framework,
we first determine what concept the claim is "directed to." See Alice, 573
U.S. at 219 ("On their face, the claims before us are drawn to the concept of
intermediated settlement, i.e., the use of a third party to mitigate settlement
risk."); see also Bilski v. Kappas, 561 U.S. 593, 611 (2010) ("Claims 1 and 4
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in petitioners' application explain the basic concept of hedging, or protecting
against risk.").
Concepts determined to be abstract ideas, and thus patent ineligible,
include certain methods of organizing human activity, such as fundamental
economic practices (Alice, 573 U.S. at 219-20; Bilski, 561 U.S. at 611 );
mathematical formulas (Parker v. Flook, 437 U.S. 584, 594--95 (1978)); and
mental processes (Gottschalkv. Benson, 409 U.S. 63, 69 (1972)). Concepts
determined to be patent eligible include physical and chemical processes,
such as "molding rubber products" (Diamond v. Diehr, 450 U.S. 175, 192
( 1981) ); "tanning, dyeing, making waterproof cloth, vulcanizing India
rubber, smelting ores" (id. at 182 n.7 (quoting Corning v. Burden, 56 U.S.
252, 267---68 (1854))); and manufacturing flour (Benson, 409 U.S. at 69
(citing Cochrane v. Deener, 94 U.S. 780, 785 (1876))).
In Diehr, the claim at issue recited a mathematical formula, but the
Supreme Court held that "[a] claim drawn to subject matter otherwise
statutory does not become nonstatutory simply because it uses a
mathematical formula." Diehr, 450 U.S. at 187; see also id. at 191 ("We
view respondents' claims as nothing more than a process for molding rubber
products and not as an attempt to patent a mathematical formula."). Having
said that, the Supreme Court also indicated that a claim "seeking patent
protection for that formula in the abstract ... is not accorded the protection
of our patent laws, ... and this principle cannot be circumvented by
attempting to limit the use of the formula to a particular technological
environment." Id. ( citation omitted) ( citing Benson and Flook); see, e.g., id.
at 187 ("It is now commonplace that an application of a law of nature or
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mathematical formula to a known structure or process may well be deserving
of patent protection.").
If the claim is "directed to" an abstract idea, we tum to the second
step of the Alice and Mayo framework, where "we must examine the
elements of the claim to determine whether it contains an inventive concept
sufficient to transform the claimed abstract idea into a patent-eligible
application." Alice, 573 U.S. at 221 (quotation marks omitted). "A claim
that recites an abstract idea must include 'additional features' to ensure 'that
the [claim] is more than a drafting effort designed to monopolize the
[abstract idea]."' Id. (alterations in original) (quoting Mayo, 566 U.S. at 77).
"[M]erely requir[ing] generic computer implementation[] fail[ s] to transform
that abstract idea into a patent-eligible invention." Id.
C. USPTO Section 101 Guidance
The United States Patent and Trademark Office (USPTO) recently
published revised guidance on the application of§ 101. USPTO's January
7, 2019 Memorandum, 2019 Revised Patent Subject Matter Eligibility
Guidance, 84 Fed. Reg. 50 ("Memorandum"). Under that guidance, we first
look to whether the claim recites:
( 1) (see Memorandum Step 2A - Prong One) 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
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(2) (see Memorandum Step 2A - Prong Two) additional elements that
integrate the judicial exception into a practical application (see MPEP
§ 2106.0S(a}-( c ), ( e}-(h)). 3
Only if a claim (1) recites a judicial exception and (2) does not integrate that
exception into a practical application, do we then look to whether the claim:
(3) adds a specific limitation beyond the judicial exception that is not
"well-understood, routine, conventional" in the field (see MPEP
§ 2106.0S(d)); or
(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 Step 2B.
C. Examiner's §1 OJ Rejection -Alice/Mayo - Steps 1 and 2
C.1. Memorandum Step 2A - Prong One
Applying step 1 of the Alice/Mayo analysis, the Examiner concludes
claim 1 is directed to an abstract idea, i.e., "inferring/estimating personal
interest in advertising content based on viewing people, as currently recited
in each of the examined claims ... , is a fundamental economic practice
and/or a method of organizing human activities." Final Act. 5. The
Examiner cites, Alice, Bilski and Ultramercial, Inc. v. Hulu, LLC, 772 F.3d
709, 713 (Fed. Cir. 2014) to establish the courts have found computerizing
3 We acknowledge that some of these considerations may be properly
evaluated under Step 2 of Alice (Step 2B of Office guidance). Solely for
purposes of maintaining consistent treatment within the Office, we evaluate
it under Step 1 of Alice (Step 2A of Office guidance). See USPTO's January
7, 2019 Memorandum, "2019 Revised Patent Subject Matter Eligibility
Guidance."
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activities normally performed by people are abstract ideas. Id. at 10. The
Examiner further analogizes the claims to those previously determined to be
abstract including claims directed to "concepts relating to delivering
advertising, marketing and sales activities or behaviors [ determined to be]
abstract, such as using an algorithm for determining the optimal number of
visits by a business representative to a client" (id. at 11 ( citing In re
Maucorps, 609 F.2d 481 (CCPA 1979)); processes of organizing
information that can be performed mentally (id. citing 'July 2015 Update:
Subject Matter Eligibility' at§ 111, page 5, second bullet); using categories
to organize, store and transmit information (id. citing Cyberfone Systems,
LLC v. CNN Interactive Group, Inc., 558 F. App 'x 988, 991-92 (Fed. Cir.
2014) (non-precedential))); data recognition and storage (id. citing Content
Extraction and Transmission LLC v. Wells Fargo Bank, N.A., 776 F.3d
1343 (Fed. Cir. 2014)); and organizing information through mathematical
correlations (id. citing Digitech Image Techs., LLC v Electronics for
Imaging, Inc., 758 F.3d 1344 (Fed. Cir. 2014)). The Examiner continues,
citing numerous other examples4 in which similar concepts were found to be
patent ineligible. Final Act. 11-12.
4 [C]omparing data (e.g., looking for longer than a threshold amount of time)
that can be performed mentally abstract, such as, as noted in the "July 2015
Update: Subject Matter Eligibility" document, at§ III, page 5, first bullet);
comparing information regarding a sample or test subject to a control or
target data (Univ. of Utah Research Found. v. Ambry Genetics Corp., 774
F.3d 755, 113 U.S.P.Q.2d 1241 (Fed. Cir. 2014) ... ; and, Association for
Molecular Pathology v. USPTO, 689 F.3d 1303 ... (Fed. Cir. 2012) ... ,
collecting and comparing known information ( Classen lmmunotherapies Inc.
v. Biogen IDEC, 659 F.3d 1057 ... (Fed. Cir. 2011) ... ; comparing data to
determine a risk level (PerkinElmer Inc. v lntema Ltd., 496 Fed. Appx. 65 ..
. (Fed. Cir. 2012) ... ), diagnosing a condition by performing tests and
thinking about the results (In re Grams, 888 F.2d 835 ... (Fed. Cir. 1989) ..
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C.2. Memorandum Step 2A - Prong Two
Applying step 2 of the Alice/Mayo analysis, the Examiner concludes:
The claims do not recite limitations, taken individually and in
combination, that are sufficient to amount to "significantly
more" than the abstract idea because the claims do not recite ...
an improvement to another technology or technical field, an
improvement to the functioning of a computer itself, or
meaningful limitations beyond generally linking the use of an
abstract idea to a particular technological environment.
Final Act. 5.
C.3. Memorandum Step 2B
Further applying step 2 of the Alice/Mayo analysis, the Examiner
finds the claims merely require implementation using a generic computer
which is insufficient to transform the abstract idea into a patent-eligible
invention. Final Act. 5-6. Addressing sequential Monte Carlo filtering and
MCMC sampling, the Examiner finds these statistical techniques are well
known computer functions that do not amount to significantly more than the
abstract idea itself. Id. at 6-7 (citing Flook).
D. Appellant's§ 1 OJ Arguments
Appellants contend the claims are not directed to an abstract idea, but
provide no evidence or reasoning in support of their contention. App.
Br. 10. Instead, Appellants focus their arguments on the contention that the
claims amount to significantly more than the abstract idea. In particular,
. ), obtaining and comparing intangible data ( Cybersource Corp. v. Retail
Decisions, Inc., 654 F.3d 1366 [] (Fed. Cir. 2011), ... , and comparing new
and stored information and using rules to identify options (SmartGene, Inc. v
Advanced Biological Labs., 555 Fed. Appx. 950 (Fed. Cir. 2014) ... ).
Final Act. 11-12.
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Appellants argue "[t]he claims clearly recite an improvement to another
technology or field. More particularly, the claims recite an improvement to
the field of advertising and marketing." App. Br. 11. Appellants further
argue
The present claims particularly improve automatic tracking of
aspects of individuals in unconstrained, noisy environments to
determine effectiveness of advertising by reciting the analysis of
image data from joint tracking of gaze direction and body pose
direction independently of motion direction of a person through
the use of programming including a combination of Sequential
Monte Carlo filtering and Markov chain Monte Carlo (MCMC)
sampling.
Id. Appellants analogize the present claims to those found eligible in
Enfzsh, LLC v. Microsoft Corp., 822 F.3d 1327 (Fed. Cir. 2016).
The Examiner responds, concluding Appellants' argued
improvements are nonspecific, the "arguments constitut[ing] no more than a
general allegation that the pending claims define a patentable invention that
improves the field of advertising and marketing, which are understood to be
abstract concepts of organizing human activity." Ans. 7. The Examiner
further dismisses Appellants' arguments, noting
Appellant[ s'] desired/intended result of determining advertising
effectiveness in unconstrained, noisy environments based on
automation amounts to no more than a desired or intended result
of the pending claims that is not positively recited anywhere in
Appellant[ s'] pending claims and, therefore, such language is not
required to be performed/achieved. No "automatic" tracking is
required to occur in any of Appellant[s'] appealed claims.
Similarly, no "effectiveness" of advertising is ever determined or
required to occur in any of Appellant[s'] appealed claims.
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Likewise, no "noisy" environment is required of any step/process
recited in any of Appellant[s'] appealed claims.
Ans. 8.
E. Analysis of Appellant's§ 1 OJ Arguments
El. Alice/Mayo Step 1 (Memorandum Step 2A)-Prong One
We are not persuaded by Appellants' contention the Examiner erred in
determining that claim 1 is directed to an abstract idea (App. Br. 10-11).
Appellants' argument to the contrary is conclusory and fails to address the
numerous examples of similar ideas determined to be abstract. See Final
Act. 5-7. The Federal Circuit has explained "the 'directed to' inquiry
applies a stage-one filter to claims, considered in light of the [S]pecification,
based on whether 'their character as a whole is directed to excluded subject
matter."' Enfzsh, 822 F.3d at 1335 (quoting Internet Patents Corp., 790 F.3d
at 1346). It asks whether the focus of the claims is on a specific
improvement in relevant technology or on a process that itself qualifies as an
"abstract idea" for which computers are invoked merely as a tool. See id.
at 1335-36. Here, it is clear from the Specification that the claims focus on
an abstract idea, and not on any improvement to computer technology and/or
functionality.
The Specification is titled "PERSON TRACKING AND
INTERACTIVE ADVERTISING." The Background section of the
Specification describes a need to determine the efficacy of billboards, signs,
and other advertising media. Spec. ,r 1. The claimed invention is ostensibly
intended to address this issue by capturing and tracking the images of
potential customers to determine, based on the customers' gaze and body
pose directions, interest levels of the potential customer in the advertising
content. Spec. ,r 5.
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Considered in light of the Specification, the purported advance over
the prior art is, thus, a way of automating observations of people to
determine whether they are looking at an advertising display. In that
context, claim 1 is directed to (1) collecting ( capturing image data) and
analyzing information (image data) to detect persons passing an advertising
display together with their gaze and body pose directions; and (2) analyzing
information (processing the image data) using certain statistical techniques
to infer interest levels in displayed advertising content. In other words, the
claims are directed to observing people to determine if they are looking at
advertising. Thus, we agree with the Examiner the claims "directed toward
the concept of visually viewing persons to infer/estimate interest of the
persons in displayed advertising content." Final Act. 4.
The Examiner finds, and Appellants' do not persuasively refute, the
claims are directed to a fundamental economic practice and/ or method of
organizing human activities. Final Act. 5. Among those activities included
within the organizing human activity group are commercial or legal
interactions including "advertising, marketing or sales activities or
behaviors" which have been determined to be abstract ideas. See
Memorandum, "Grouping of Abstract Ideas" including cases cited in
footnote 13. Likewise, the claimed use of a combination of Sequential
Monte Carlo filtering and Markov chain Monte Carlo (MCMC) sampling
falls within the group of mathematic concepts which includes "mathematical
relationships, mathematical formulas or equations, mathematical
calculations." Id. including cases cited in footnote 12. Therefore, use of
Monte Carlo filtering and MCMC sampling is a mathematical concept,
which is an abstract idea. And although we note that all the limitations
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identified above, when considered together, may be more than just a
"commercial or legal interaction" or "mathematical concept" alone, simply
adding one to the other does not render a claim non-abstract. RecogniCorp,
LLC v. Nintendo Co., Ltd., 855 F.3d 1322, 1327 (Fed. Cir. 2017); see also
FairWarning IP, LLC v. Iatric Systems, Inc., 839 F.3d 1089, 1093-94 (Fed.
Cir. 2016) (patent-ineligible claims were directed to a combination of
abstract ideas). Furthermore, tracking where a person is looking is no more
than making an observation and evaluating whether the person's gaze is
directed at a particular object, activities considered to be abstract mental
processes. See Memorandum, "Grouping of Abstract Ideas" including cases
cited in footnotes 14 and 15.
For the reasons discussed above, Appellants' contentions of error are
unpersuasive and we agree with the Examiner's determination that the
claims recite an abstract idea.
E2. Alice/Mayo Step 1 (Memorandum Step 2A) - Prong Two
We agree with the Examiner that claim 6 "do[es] not recite ... an
improvement to another technology or technical field, an improvement to the
functioning of the computer itself [see MPEP 2106.05(a)], or meaningful
limitations beyond generally linking the use of an abstract idea to a
particular technological environment [see MPEP 2106.05(h)]." Final Act. 5.
Consistent with Appellants' argument, rather than a technological
innovation, "the claims recite an improvement to the field of advertising and
marketing." App. Br. 11. Thus, in view of Appellants' Specification, and
consistent with the Examiner's determinations and Appellants'
characterization of the claims, we conclude that claim 1 does not integrate
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the judicial exception into a practical application. We determine claim 1
does not recite:
(i) an improvement to the functioning of a computer;
(ii) an improvement to another technology or technical field;
(iii) an application of the abstract idea with, or by use of, a
particular machine;
(iv) a transformation or reduction of a particular article to a
different state or thing; or
(v) other meaningful limitations beyond generally linking the
use of the abstract idea to a particular technological
environment.
See MPEP §§ 2106.05(a}-(c), (e}-(h). Instead, any improvement is to the
underlying abstract idea of inferring/estimating personal interest in
advertising content based on viewing people. SAP Am., Inc. v. InvestPic,
LLC, No. 2017-2081, 2018 U.S. App. LEXIS 12590, Slip. Op. 13 (Fed. Cir.
May 15, 2018) ("What is needed is an inventive concept in the non-abstract
realm.").
Although the claims require a combination of sequential Monte Carlo
filtering and Markov chain Monte Carlo (MCMC) sampling to infer interest
levels of the persons in the advertising content displayed by the advertising
station, as discussed above, these statistical techniques are mathematical
concepts in the form of formulas, equations, and calculations which also
have been determined to constitute abstract ideas. See Memorandum,
"Grouping of Abstract Ideas" and cases cited in footnote 12. Furthermore,
Appellants have not demonstrated that these techniques differ from
conventional processes performed by a general-purpose computer. In
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particular, both Monte Carlo filtering and MCMC sampling are
mathematical techniques commonly implemented using computers. See,
e.g., Olivier Cappe et al., An Overview of Existing Methods and Recent
Advances in Sequential Monte Carlo, 95 Proceedings of the IEEE , 899-924
(2007) ("Gordon (1993), ... is commonly regarded as the first instance of
modem sequential Monte Carlo (SMC) approaches [ which initially]
focussed on applications to tracking and vision") and Christian Robert &
George Casella, A Short History of Markov Chain Monte Carlo: Subjective
Recollections from Incomplete Data, 26 Statistical Science, 102-115 (2011)
("The first MCMC algorithm is associated with a ... computer, called
MANIAC, built in Los Alamos under the direction of Metropolis in early
1952.")
For the reasons discussed above, we agree with the Examiner that
claim 1 is directed to a judicial exception that is not integrated into a
practical application.
E3. Alice/Mayo Step 2 (Memorandum Step 2B)-Inventive Concept
The Examiner determines "none of the processes/steps recited in the
examined claims taken individually and in combination impose a meaningful
limit on the claim's scope since none of recited processes/steps taken
individually and in combination involve activity that is more than generic
computer functions/activity." Final Act. 6. According to the Examiner, the
claimed steps are "generic computer functions that involve well-understood,
routine and conventional activities previously known to the industry ... that
can be performed over time by many general purpose camera computers."
Final Act. 6. The Examiner explains "[e]mploying well-known computer
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functions (e.g., MCMC sampling) individually and in combination to
execute an abstract idea, even when limiting the use of the idea to one
particular environment, does not add significantly more, similar to how
limiting the computer-implemented abstract idea in Flook." Id.
Appellants contend "the Office Action has failed to make a prima
facie showing that the claims do not add significantly more than the
allegedly abstract idea." App. Br. 9.
As discussed above, Appellants' contention the "claimed subject
matter improves automatic tracking of aspects of individuals in
unconstrained noisy environments to determine effectiveness of advertising"
(App. Br. 11) is unpersuasive because the argued improvement is to the
underlying commercial or legal interaction, not to the technology
implementing the idea. Furthermore, prior cases have made clear that mere
automation of manual processes using generic computers typically does not
constitute a patentable improvement in computer technology. In those cases,
"the focus of the claims is not on such an improvement in computers as
tools, but on certain independently abstract ideas that use computers as
tools." Credit Acceptance Corp. v. Westlake Svcs., 859 F.3d 1044, 1055
(Fed. Cir. 2017) (internal citation omitted). We are also not persuaded the
addition of a mathematical concept, i.e., use of a combination of sequential
Monte Carlo filtering and Markov chain Monte Carlo (MCMC) sampling,
provides a technological improvement. Instead, at most, the recited
statistical methods simply append well-understood, routine, conventional
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activities previously known to the industry, specified at a high level of
generality, to the judicial exception.
Because claim 6, in addition to the mathematical concept, recites only
a well-understood, routine, conventional element/combination previously
known in the industry, we conclude a preponderance of evidence supports
the Examiner's Alice/Mayo step 2 analysis. Therefore, we are unpersuaded
by Appellants' argument that further evidence is required. In view of
Appellants' Specification, and consistent with the Examiner's
determinations, we determine the claims do not recite:
(vi) a specific limitation other than what is well-understood,
routine, conventional activity m the field or
unconventional steps that confine the claim to a particular
useful application.
See MPEP § 2106.05(d).
For the reasons discussed above, we disagree the Examiner erred in
determining the claimed invention is directed to a judicial exception without
significantly more and we sustain the rejection of claims 6-9, 11-14, and
23-25 under 35 U.S.C. § 101.
REJECTIONS UNDER 35 U.S.C. § 103(A)
The Examiner rejects all claims under 35 U.S.C. § 103(a) based on
two combinations of references, Sharma, Moon, and Smith ( and, in the case
of claim 12, Shand) and either (i) Sankaranarayanan or (ii) Xu. Final Act.
22-32.
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Rejections Relying on Sankaranarayanan
Appellants contend the rejections under 35 U.S.C. § 103(a) relying on
combinations including the Sankaranarayanan reference are improper
because the reference is not available as prior art, Appellants having
submitted an affidavit of Ming-Ching Chang dated October 15, 2015 under
37 C.P.R. 1.132 (the "132 Affidavit"). App. Br. 18-19. Affiant, Mr. Chang,
together with Nils Krahnstoever are two of the three authors of the
Sankaranarayanan reference and two of the four named inventors of the
subject patent application. Id. In the 132 Affidavit, Mr. Chang avers that
any common subject matter disclosed in the Sankaranarayanan reference and
claimed in the present application was his own invention, and not that of
another. 132 Affidavit, p. 2.
The Examiner does not accept the 132 Affidavit to disqualify the
Sankaranarayanan publication as a reference. Ans. 17. According to the
Examiner, the affidavit is deficient because it fails to identify the relevant
portions of the publication that originated with the affiant, Mr. Chang. Id. at
16.
We disagree the affidavit is deficient because we disagree it fails to
adequately identify particular subject matter originated by the author/
inventor, Mr. Chang. MPEP § 715.0l(c) provides guidance when swearing
behind a publication of "Applicant's Own Invention":
Where the inventor or at least one joint inventor is a co-author of
a publication cited against an application, a rejection of the
application under pre-AIA 35 U.S.C. 102(a) or (e) based on the
publication may be overcome by filing an affidavit or declaration
of the inventor or at least one joint inventor under 3 7 CPR
1.13 l(a). Alternatively, the rejection may be overcome by filing
a specific affidavit or declaration of the inventor or at least one
joint inventor under 37 CPR 1.132 establishing that the
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publication is describing the inventor's or inventors' own work.
An uncorroborated affidavit or declaration by a single inventor
indicating the inventor to be the sole inventor and the other co-
authors to have been merely working under his or her direction
has been sufficient to remove the publication as a reference under
pre-AIA 35 U.S.C. 102(a). In re Katz, 687 F.2d 450,215 USPQ
14 (CCPA 1982). However, if the affidavit or declaration under
37 CPR 1.132 is only a naked assertion of inventorship, which
occurred long ago, by an inventor who has an interest at stake
and it fails to provide any context, explanation or evidence to
support that assertion, documentary evidence contemporaneous
with the invention may be needed to provide some degree of
corroboration.
The application on appeal names four inventors, two of whom are
among the three named authors of the Sankaranarayanan publication, i.e.,
Ming-Ching Chang and Nils Oliver Krahnstoever, the third (i.e., first named
author) being Karthik Sankaranarayanan who is not named as an inventor.
The disputed affidavit of inventor Mr. Chang includes the following
declaration:
I hereby declare that any invention disclosed but not claimed in
[the] Sankaranarayanan [publication] that was identified and
relied on by the Examiner in the Final Office Action mailed on
July 17, 2015, that is claimed in the present patent application,
was made by me and is therefore not an invention "by another",
and that any use of such in the present patent application was
based upon my contribution to the presently claimed invention.
132 Affidavit, p. 2. The earliest asserted date of the Sankaranarayanan
publication is 20105, five years prior to the date of the declaration. This time
5 Appellants argue the effective date of the Sankaranarayanan publication is
later, having been first made available when presented at the 2011 IEEE
Workshop on Applications of Computer Vision (W ACV) conference held
January 5-7, 2011. App. Br. 18. We note in passing that Appellants'
position asserting the later 2011 effective publication date is consistent with
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difference standing alone is insufficient to require the affiant provide
context, explanation, or evidence to support that assertion, or otherwise
provide documentary evidence contemporaneous with the invention in
corroboration of the asserted facts and the Examiner has failed to provide
any reasoning supporting a need for any such corroborating evidence. We
are also unpersuaded Appellants' reasoning is improper merely because
Appellants' mistakenly cited to MPEP § 715.0l(a) "Reference Is a Patent or
Published Application Naming Different Inventive Entity With at Least One
Common Inventor" (see App. Br. 18) rather than subsection 715.0l(c)
"Reference Is Publication of Applicant's" Own Invention discussed and
applied above. See Ans. 17. Appellants' reference to the incorrect
subsection of the MPEP is harmless error.
For the reasons discussed above, absent evidence of a publication date
more than one year prior to Appellants' August 30, 2011 effective filing
date, the disputed the 132 Affidavit overcomes the use of the
Sankaranarayanan publication as a prior art printed publication available
before the invention was made by the applicant. Accordingly, we do not
sustain the rejections relying on the Sankaranarayanan publication, i.e., the
rejection of claims 6-9, 11, 13, 14 and 23-25 under 35 U.S.C. § 103(a) over
Sharma, Moon, Sankaranarayanan, and Smith or the rejection of claim 12
over Sharma, Moon, Sankaranarayanan, Smith and Shand.
Rejections Relying on Xu
The Examiner finds Sharma discloses
information available from the IEEE website indicating the
Sankaranarayanan article was added to IEEE Xplore on February 10, 2011.
See https://ieeexplore.ieee.org/abstract/document/5711548.
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tracking gaze directions and body directions independent of
motion direction of persons passing an advertising station
displaying advertising content from multiple cameras in an
unconstrained environment based on captured image data from
each of the multiple cameras, the multiple cameras being used to
detect the persons passing the advertising station as well as the
gaze directions and the body directions independent of motion
direction of the persons passing the advertising station.
Final Act. 13 (citing Sharma Figures 1 and 8; col. 3, 11. 37-51; col. 6, 11.
54---60; col. 7, 1. 65---col. 8, 1. 39; col. 8, 1. 56- col. 9, 1. 3; col. 9, 11. 5-9; col.
11, 11. 20-25; col. 11, 11. 42--48; col. 13, 11. 58---61; col. 15, 11. 26, 33-36,
41--47; col. 17, 11. 30--41; col. 19, 11. 4--49; claim 15; Abstract). Appellants
traverse the Examiner's findings, arguing
Appellants are unable to identify any teaching of jointly tracking
gaze directions and body pose directions independent of motion
direction. At most, Sharma teaches that the face of a person may
be tracked and the body of a person may be tracked. See Sharma,
col. 16, lines 35--40. However, nothing in Sharma appears to
teach or suggest that gaze directions and body pose directions are
jointly tracked independent of motion direction of a person.
App. Br. 15.
The Examiner responds, explaining, under a broadest reasonable
interpretation, the recited gaze and body directions must be independent of
the motion direction of persons (plural), i.e., not necessarily independent of
the motion direction of the person who's gaze and body directions are
tracked. Ans. 10. "In other words, the tracking of Sharma '036 does not
depend on the motion direction of multiple people moving past an
advertising station and, therefore, Sharma '036 clearly discloses tracking of
'gaze directions' and 'body directions independent of motion direction of
persons passing ... '". Id. Appellants reply arguing "interpretation of the
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claims must ... be consistent with the interpretation that one of ordinary
skill in the art would reach." Reply Br. 4 (citing In re Cortright, 165 F.3d
1353, 1359 (Fed. Cir. 1999); M.P.E.P. § 2111). According to Appellants,
"one of ordinary skill in the art would readily appreciate that the claims
recite the joint tracking of the gaze direction and body pose direction of a
first person independent of the motion direction of the same first person. Id.
During examination of a patent application, pending claims are given
their broadest reasonable construction consistent with the specification. In
re Am. Acad. of Sci. Tech Ctr., 367 F.3d 1359, 1364 (Fed. Cir. 2004). Under
the broadest reasonable interpretation standard, claim terms are given their
ordinary and customary meaning as would be understood by one of ordinary
skill in the art in the context of the entire disclosure. In re Trans logic Tech.,
Inc., 504 F.3d 1249, 1257 (Fed. Cir. 2007). However, a particular
embodiment appearing in the written description must not be read into the
claim if the claim language is broader than the embodiment. See In re Van
Geuns, 988 F.2d 1181, 1184 (Fed. Cir. 1993) ("[L]imitations are not to be
read into the claims from the specification."). Construing claims broadly
during prosecution is not unfair to the applicant, because the applicant has
the opportunity to amend the claims to obtain more precise claim
coverage. Acad. of Sci. Tech Center, 367 F.3d at 1364. See, also In re
Skvorecz, 580 F.3d 1262, 1267-68 (Fed. Cir. 2009) ("Applicant always has
the opportunity to amend the claims during prosecution, and broad
interpretation by the examiner reduces the possibility that the claim, once
issued, will be interpreted more broadly than is justified." ( quoting Manual
of Patent Examining Procedure § 2111) ).
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Appellants provide insufficient evidence in support of their argument
asserting how one of ordinary skill in the art would interpret the claims.
Instead, we agree with the Examiner that use of the plural form of person
(i.e., persons plural versus person singular) provides a reasonable basis to
interpret claim 6 as only requiring detection of gaze and body pose
directions independent of the motion direction of multiple persons passing
the advertising station, not of one particular person as argued. Appellants'
argument itself undercuts the more restrictive interpretation advanced by
Appellants. In particular, Appellants emphasize a requirement to detect "the
gaze direction and body pose direction of a first person independent of the
motion direction of the same first person." Id. That is, in clarifying the
argued interpretation, Appellants use additional language restricting the
relationship to the same person, yet no such language appears in the claim.
Thus, we agree with the Examiner that the claim does not require the gaze
and body pose direction of a person be independent of the motion direction
of that same person.
In view of our interpretation, we agree with the Examiner's
determination that argued limitation is disclosed by Shanna's tracking which
does not depend on the motion direction of multiple people moving past an
advertising station. See Ans. 10.
We are also unpersuaded the combination of applied references is
improper for failure of the Examiner to provide objective evidence of the
requisite motivation or suggestion for the modification. App. Br. 16. In
particular, the Examiner applies Smith for teaching the use of "a
combination of sequential Monte Carlo filtering and Markov chain Monte
Carlo (MCMC) sampling to determine whether a person's attention is
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directed at the advertisement or not." Final Act. 15. According to the
Examiner, it would have been obvious to incorporate Monte Carlo filtering
and MCMC sampling methods into the multiple camera systems taught by
the combination of Sharma, Moon, and Xu "because such incorporation
would be applying known technique to a known device (method, or product)
ready for improvement to yield predictable results." Id. at 16 ( citing MPEP
§ 2143). Appellants argue "[n]othing in Smith appears to suggest that the
techniques of Smith are suitable for use with multiple cameras, much less at
least one fixed camera and a plurality of Pan-Tilt-Zoom cameras in an
unconstrained environment, as recited by the present claims." App. Br. 16-
17.
The Examiner responds, noting "The KSR[ 6J court never articulated a
requirement of 'objective evidence' to support a conclusion of obviousness;
instead, only 'some' articulated reasoning with 'some' rational underpinning
is needed per the KSR decision's quote of In re Kahn[7J_" Ans. 12. The
Examiner explains the rejection relies upon KSR rationale D for combining
the references, i.e., applying a known technique to a known device (method,
or product) ready for improvement to yield predictable results. Id. at 12.
The Examiner considers Appellants' argument unpersuasive because it is
instead directed towardKSR rationale "G", i.e., the provision of"[s]ome
teaching, suggestion, or motivation in the prior art that would have led one
of ordinary skill to modify the prior art reference or to combine prior art
reference teachings to arrive at the claimed invention", which rationale was
not used as a basis for the combination. Id. at 11-12. Therefore, under the
6 KSR Int'l Co v. Teleflex Inc., 550 U.S. 398 (2007).
7 In re Kahn, 441 F.3d 977, 988 (Fed. Cir. 2006)
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rationale used by the Examiner, there is no requirement to address
motivation for the combination. Id. at 12. The Examiner further finds,
rather than being limited to a single fixed camera as argued by Appellants
and, therefore, not properly combinable with the multiple cameras of
Sharma and Xu (App. Br. 16-17), Smith teaches the use of data from
multiple cameras. Ans. 14 (citing Smith p. 1126). The Examiner explains:
Id.
Tracking 'using a combination of sequential Monte Carlo
filtering and Markov chain Monte Carlo (MCMC) sampling' -
which is the only claim limitation that the Final Office Action
relies on Smith to teach - appears to be a process applied to image
data. In other words, the tracking of persons occurs using the
image data of persons that are obtained. Whether multiple
cameras are used to capture these images appears irrelevant to
'using a combination of sequential Monte Carlo filtering and
Markov chain Monte Carlo (MCMC) sampling' since Monte
Carlo filtering and MCMC sampling appears to be a process that
is applied to image data - not to camera hardware.
Appellants' argument is unpersuasive of reversible Examiner error.
Smith discloses the use of sequential Monte Carlo filtering and MCMC
sampling to process video data to detect and track people, i.e., a known
technique applied to a known method (image processing to track people)
ready for improvement. In particular, the application of Smith discloses
details of how to perform a function disclosed by the combination of
Sharma, Moon, and Xu, i.e., how to track people. Furthermore, in the
absence of evidence to the contrary, we agree the use of Smith's methods
yields predictable results. According, we agree with the Examiner that
modifying the combination of Sharma, Moon, and Xu to track people using
a combination of sequential Monte Carlo filtering and MCMC sampling as
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taught by Smith would have been obvious as merely applying a known
technique to a known method ready for improvement to yield predictable
results.
For the reasons discussed above, Appellants' contentions of Examiner
error in connection with the rejection of claim 6 are unpersuasive.
Accordingly, we sustain the rejection of independent claim 6 under 35
U.S.C. § 103(a) over Sharma, Moon, Xu, and Smith together with the
rejection of independent 23 and dependent claims 7-9, 11, 13, 14, 24, 25
which are not argued separately with particularity. We further sustain the
rejection of dependent claim 12 under U.S.C. § 103(a) over Sharma, Moon,
Xu, Smith, and Shad, this dependent claims also not argued separately with
particularity.
DECISION
We affirm the Examiner's decision to reject claims 6-9, 11-14, and
23-25 under 35 U.S.C. § 101.
We reverse the Examiner's decision to reject claims 6-9, 11, 13, 14
and 23-25 under 35 U.S.C. § 103(a) over Sharma, Moon, Sankaranarayanan,
and Smith.
We reverse the Examiner's decision to reject claim 12 under 35
U.S.C. § 103(a) over Sharma, Moon, Sankaranarayanan, Smith, and Shand.
We affirm the Examiner's decision to reject claims 6-9, 11, 13, 14 and
23-25 under 35 U.S.C. § 103(a) over Sharma, Moon, Xu, and Smith.
We affirm the Examiner's decision to reject claim 12 under 35 U.S.C.
§ 103(a) over Sharma, Moon, Xu, Smith, and Shand.
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Because we have affirmed at least one ground of rejection for each
claim on appeal, we affirm the Examiner's decision to reject the claims.
37 C.F.R. § 4I.50(a)(l).
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). See 37
C.F.R. § 4I.50(f).
AFFIRMED
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