Ex Parte Ogg et al

Board of Patent Appeals and Interferences

Jun 17, 2012

10598074 (B.P.A.I. Jun. 17, 2012)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________________

Ex parte FELIX HENRIC GOVERT OGG and
DAVID PETER LOUIS SIMONS
____________________

Appeal 2010-004210
Application 10/598,074
Technology Center 3700
____________________

Before: JENNIFER D. BAHR, WILLIAM V. SAINDON, and
MICHAEL J. FITZPATRICK, Administrative Patent Judges.

SAINDON, Administrative Patent Judge.

DECISION ON APPEAL
Appeal 2010-004210
Application 10/598,074
2
STATEMENT OF THE CASE
Appellants appeal under 35 U.S.C. § 134 from the Examiner’s
decision rejecting claims 1-17. We have jurisdiction under 35 U.S.C. § 6(b).
Claim 1, reproduced below, is illustrative of the claimed subject matter.
1. An audio interval training device, comprising:
a sensing unit to obtain a parameter of a user in physical
exercise;
a memory to store a plurality of audio signals, each
having a predetermined tempo value; and
a processing unit configured to (1) receive the parameter
from the sensing unit, (2) receive a first and second target
parameter value, (3) select a first and second audio signals
having a respective tempo corresponding to the first and second
target parameter values, (4) rendering the first audio signal to
the user at least until the processor determines the parameter
has achieved the first parameter value, (5) rendering the second
audio signal to the user at least until the processor determines
the parameter has achieved the second parameter value, and (6)
alternating the rendering of the first and second audio signals
according to (4) and (5).

References
The Examiner relies upon the following prior art references:
Huish
Curtin
McHugh
Stubbs
US 5,879,270
US 5,986,200
US 6,230,047 B1
US 6,736,759 B1
Mar. 9, 1999
Nov. 16, 1999
May 8, 2001
May 18, 2004

Rejections
I. Claims 1, 2, 4-8, 10-14, and 17 are rejected under 35 U.S.C. § 103(a)
as unpatentable over McHugh and Huish.
II. Claim 3 is rejected under § 103(a) as unpatentable over McHugh,
Huish, and Stubbs.
Appeal 2010-004210
Application 10/598,074
3
III. Claims 9, 15, and 16 are rejected under § 103(a) as unpatentable over
McHugh, Huish, and Curtin.

SUMMARY OF DECISION
We AFFIRM-IN-PART.

OPINION
Claim 1 and dependents
Independent claim 1 requires, in relevant part, “a memory to store a
plurality of audio signals, each having a predetermined tempo value”
(emphasis added). The Examiner found that McHugh teaches this limitation
with the processor/memory (means 32) that stores rhythm pattern data.
Final Rej. at 3 (mailed Feb. 18, 2009); see also McHugh, col. 4, l. 65 to col.
5, l. 6. The Examiner found that “rhythm pattern data would inherently have
a tempo.” Ans. 5. Appellants argue that these rhythm patterns do not have a
predetermined tempo value but rather a variable tempo. App. Br. 5-6 (citing
McHugh, col. 5, ll. 41-44 (“As the user’s pulse rate increases, the tempo of
the rhythm correspondingly increases”)).
The Examiner’s position is in error. A rhythm does not necessarily
include a tempo; a rhythm is akin to a pattern and the tempo is akin to the
speed at which the pattern is played.1 In addition, we find no evidence that
the means 32 of McHugh stores a predetermined tempo value for the rhythm
pattern data. Instead, as Appellants point out, the stored rhythm is played at
a tempo dictated by the heartbeat. See App. Br. 5; McHugh, col. 5, ll. 41-44;
see also McHugh, col. 5, l. 61 to col. 6, l. 6 (describing an alternate

1 See, e.g., “tempo,” “rate of rhythmic recurrence or movement,” Webster’s
Third New International Dictionary (1993) (retrieved from
lionreference.chadwyck.com) (last accessed June 11, 2012).
Appeal 2010-004210
Application 10/598,074
4
embodiment wherein the rhythm is played at a desired level until the
heartbeat matches).
In light of the above, we do not sustain the Examiner’s rejection of
claim 1. Claims 2, 4-8, 10, and 11 of the same rejection depend from claim
1 and likewise are not sustained. The Examiner’s separate rejections of
claims 3 and 9 are not sustained because these rejections do not remedy the
underlying deficiency of claim 1, from which these claims depend.
Claim 12 and dependents
Unlike claim 1, claim 12 is directed to a method and requires, in
relevant part, a step of “selecting a first and second audio signal having
respective tempos, corresponding to the first and second target parameter
values.” The Examiner found that McHugh teaches this limitation at column
5, line 61 to column 6, line 6. Fin. Rej. at 6. This portion of McHugh
teaches the functionality of playing a rhythm at a particular tempo until a set
heart rate is achieved.
Appellants argue, “this claim is allowable for the same reasons
described in this section as claim 1.” App. Br. 7. However, claim 12 does
not include a limitation requiring audio signals having predetermined tempos
stored on a memory. Accordingly, Appellants’ argument is not
commensurate with the scope of claim 12. We are not apprised of error in
the Examiner’s rejection of claim 12, or of claims 13, 14, and 17, which
depend therefrom. Likewise, Appellants’ separate argument of claims 15
and 16 does not suggest any particular error in the Examiner’s rejection. As
such, we also sustain the rejection of these claims.

Appeal 2010-004210
Application 10/598,074
5
DECISION
We reverse the Examiner’s decision regarding claims 1-11.
We affirm the Examiner’s decision regarding claims 12-17.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv).

AFFIRMED-IN-PART

hh