Ex Parte ROUS et al

Patent Trial and Appeal Board

Mar 11, 2019

15029659 (P.T.A.B. Mar. 11, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
15/029,659 04/15/2016 JOSEPH HENRICUS GERARDUS ROUS
24737 7590 03/13/2019
PHILIPS INTELLECTUAL PROPERTY & STANDARDS
465 Columbus A venue
Suite 340
Valhalla, NY 10595
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.
2014P01048WOUS 5580
EXAMINER
NGUYEN, LEON VIET Q
ART UNIT PAPER NUMBER
2663
NOTIFICATION DATE DELIVERY MODE
03/13/2019 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):
patti. demichele@Philips.com
marianne.fox@philips.com
katelyn.mulroy@philips.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte JOSEPH HENRICUS GERARDUS ROUS and
LUCIA MANUHUTU
Appeal2018-002991
Application 15/029,659
Technology Center 2600
Before JOSEPH L. DIXON, JENNIFER S. BISK, and JOHN A. EV ANS,
Administrative Patent Judges.
BISK, Administrative Patent Judge.
DECISION ON APPEAL
Appellants 1 appeal under 35 U.S.C. § 134 from a rejection of claims
1-18. We have jurisdiction under 35 U.S.C. § 6(b ).
We affirm-in-part.
1 Appellants identify the real party in interest as Koninklijke Philips N.V.
Appeal Br. 1.
Appeal2018-002991
Application 15/029,659
BACKGROUND2
The claims are directed to promoting physical activity through
monitoring and feedback. Spec. Abstract. Claim 1, reproduced below, is
illustrative of the claimed subject matter:
1. An activity monitor comprising:
a physiological sensor configured to measure data concerning
user activity; and
a transceiver for wireless communications,
wherein the transceiver is configured to transmit wireless
communications comprising data concerning user activity, the
wireless communications used to influence the contents of a
story corresponding to a storybook, the story presented to the
user of the activity monitor.
REJECTIONS
The Examiner made the following rejections:
Claims 1-13, 15, 16, and 18 are rejected under 35 U.S.C. § 103 as
being unpatentable over US 2013/0197679 Al, published Aug. 1, 2013
("Balakrishnan") in view of US 2010/0268056 Al, published Oct. 21, 2010
("Picard").
Claims 14 and 17 are rejected under 35 U.S.C. § 103 as being
unpatentable over Balakrishnan and Picard in view of US 2014/0171039 Al,
published June 19, 2014 ("Bjontegard").
2 Throughout this Decision we have considered the Specification filed
March 24, 2017 ("Spec."), the Final Rejection mailed April 14, 2017 ("Final
Act."), the Appeal Brief filed September 12, 2017 ("Appeal Br."), the
Examiner's Answer mailed November 28, 2017 ("Ans."), and the Reply
Brief filed January 25, 2018 ("Reply Br.").
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ANALYSIS
We have reviewed the Examiner's rejections in light of Appellants'
arguments that the Examiner erred. In reaching this decision, we have
considered all evidence presented and all arguments made by Appellants.
Arguments Appellants could have made, but chose not to make in the Briefs,
are deemed waived. See 37 C.F.R. § 4I.37(c)(l)(iv).
Claims 1 and 2
The Examiner interprets the term "story" as "an account of connected
events, such as activity levels over a certain time period." Final Act. 6.
Based on that construction, the Examiner finds that Balakrishnan teaches
"the wireless communications used to influence the contents of a story" by
disclosing an interface for viewing activity data over various time periods,
including by using various themes, types of graphs, types of statistics, and
summaries. Id. (citing Balakrishnan ,r,r 75-76, 91). The Examiner interprets
the term "storybook" as including a physical "e-book" for displaying stories
and points to Picard as teaching this limitation. Id. at 6-7 (citing Picard
,r,r 93, 96). The Examiner finds that it would have been obvious to one of
ordinary skill in the art at the time the invention was filed to combine the
teachings of Balakrishnan and Picard "to display information in a useful and
convenient form to a user." Final Act. 7 (citing Picard ,r 93).
First, Appellants argue that the Examiner has improperly construed
the term "story." Appeal Br. 4---6. According to Appellants, the term "story"
is "described in the context of a storybook, characters, and story lines, and
NOT in the way of presenting activity data." Id. at 5. Appellants, however,
do not propose a particular construction of the term. See Appeal Br. 4---6.
Appellants also do not explain why the described display of activity data by
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Balakrishnan does not qualify as "the wireless communications used to
influence the contents of a story." Id.
We agree with the Examiner that the term "story" should be construed
broadly to include an account of activity data that may be presented by
visual means such as pictures and graphs. See Ans. 10. The Specification
does not explicitly define the term "story" and a broad interpretation is
consistent with the Specification, which states that "[ t ]he story may be
configured to cover a week rhythm or a program rhythm" and "the level of
the user's activity or the activity pattern can be used to alter the presentation
of the story by, e.g., introducing new characters, a new story line, etc."
Spec. ,r,r 60-61. Appellants do not identify where the Specification does not
require that the story include any specific context, characters, or storyline.
See Spec. Moreover, Appellants do not identify any language in the
Specification that describes the relationship of "story" to "storybook"
beyond, as recited in claim 1, the contents of the story correspond to the
"storybook." See Spec. We also agree with the Examiner's finding that
Balakrishnan's graphs used to display activity gathered by sensor data
performed for a period of time teaches or suggests the claimed "story." Ans.
11; Balakrishnan Figs. llA, 1 lB, llD, ,r 17.
Second, Appellants argue that Picard does not teach "the wireless
communications used to influence the contents of a story corresponding to a
storyboolc' because the relevant portions of Picard "do not describe the use
of an e-book to influence the contents of stories, but rather, to display sensor
data." App. Br. 6. Additionally, according to Appellants, Picard's "sensor
data has nothing to do with stories presented on thee-book." Id.
As noted above, the Specification only requires the contents of the
story correspond to the storybook and only requires the wireless
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communications to influence the contents of a story. See Spec.
Consequently, we agree with the Examiner that "if the story is at least
displayed on or loaded onto a storybook then the story corresponds to the
storybook." Ans. 11. Appellants' argument that thee-book must influence
the contents of stories (see App. Br. 6) is not consistent with the language of
the claim or with the contents of the Specification. See, e.g., Spec. ,r,r 60-
61.
We also agree with the Examiner's finding that Picard's e-book
displaying remotely collected activity data teaches or suggests the claimed
"storybook." Ans. 12; Picard Fig. 10, ,r,r 66, 93. Appellants' argument that
Picard's "sensor data has nothing to do with stories presented on thee-book"
is inapposite because the Examiner relies on Balakrishnan as teaching stories
influenced by sensor data and relies on Picard solely for teaching display of
Balakrishnan's stories on an e-book. Final Act. 6-7. Where a rejection rests
on the combined disclosures in the references, an appellant cannot establish
nonobviousness by attacking the references individually. See In re Merck &
Co., 800 F.2d 1091, 1097 (Fed. Cir. 1986). Here, the combined disclosures
in Balakrishnan and Picard teach the disputed "wherein the transceiver is
configured to transmit wireless communications comprising data concerning
user activity the wireless communications used to influence the contents of a
story corresponding to a storybook, the story presented to the user of the
activity monitor." See Final Act. 6-7; Ans. 10-12.
Finally, Appellants argue that "there is no motivation to combine"
Balakrishnan and Picard. App. Br. 7. According to Appellants, "[i]t is
unreasonable to allege that someone equipped with the teaching of
Balakrishnan, with its extensive examples of display information, would
seek Picard with just two GUis." Id. Moreover, Appellants assert "it is
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unclear how the displays of Balakrishnan would be more useful or
convenient on the bases of the teachings of Picard." Id.
Appellants do not persuade us the Examiner erred in reasoning that a
person of ordinary of skill in the art would have found it obvious to combine
the teachings of Balakrishnan and Picard to display information in a useful
and convenient form to a user. Final Act. 7 (citing Picard ,r 93). Appellants
agree that Balakrishnan is concerned with displaying activity data in a
manner that is useful and convenient for users. See Appeal Br. 7. Given
that Balakrishnan seeks to solve this general problem, we agree with the
Examiner that a person of ordinary skill would have looked to Picard's
disclosure of using an e-book for yet another option in displaying
information in a useful and convenient manner. See Final Act. 7; Ans. 13
("In this case, by displaying information in a useful and convenient form to a
user, one of ordinary skill in the art would realize that a user's experience
would be enhanced.").
Accordingly, we are not persuaded the Examiner erred in relying on
the combined teachings of Balakrishnan and Picard to teach or suggest the
disputed limitations of claim 1, nor do we find error in the Examiner's
resulting legal conclusion of obviousness. Accordingly, we sustain the
Examiner's obviousness rejection of claim 1 as obvious over the
combination of Balakrishnan and Picard. The same is true for dependent
claim 2, which Appellants do not argue separately. 3
3 When Appellants do not separately argue the patentability of dependent
claims, the claims stand or fall with the claims from which they depend.
In re King, 801 F.2d 1324, 1325 (Fed. Cir. 1986).
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Claim 3
Claim 3 depends from claim 1 and recites "wherein the wireless
communications comprising data concerning user activity are transmitted in
response to the physiological sensor measuring data concerning user activity
that indicates the user activity exceeds a specified value." Appeal Br. 28
(Claims Appendix). The Examiner relies on Balakrishnan as teaching this
limitation. Final Act. 7 (citing Balakrishnan ,r,r 33, 41, 47).
Appellants argue that the relied upon portions of Balakrishnan do not
teach the recited limitation. Appeal Br. 8-11. In particular, Appellants
assert that those portions of Balakrishnan "merely appear to describe the
tallying of activity points to achieve a goal" but do not describe "that the
wireless communications are transmitted in response to the sensor measuring
user activity that exceeds a specified value." Id. at 8, 10.
In response, the Examiner asserts that "the activity monitor of claims
1 and 3 is not claimed as a single device and therefore may be broadly
interpreted as an entire system which performs the functions as claimed."
Ans. 13-14. The Examiner further explains that "Balakrishnan teaches that
the system determines an activity point goal (i-f 47), interpreted to be a
specific threshold value, and whether a user has at least reached the goal
(i-f 48)" and "[ u Jpon reaching the goal, an alert may be provided to the user
(i-f 48)." Id. at 14. According to the Examiner, based on these teachings, "it
would be obvious for the goal completion alert to comprise user activity data
such as activity points achieved in the same way that the indication of the
goal not being reached indicates the number of activity points needed." Id.
The Examiner adds that "Picard teaches delivering alerts which are triggered
by specific events received from sensors including ... crossing certain
thresholds." Id. (citing Picard ,r 100). The Examiner, consequently,
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concludes that "the combination of Balakrishnan and Picard teaches the
limitations of claim 3." Id.
Appellants argue that the activity monitor of claims 1 and 3 is a single
device, not a system. Reply Br. 6. Appellants also argue that sending out
activity points, as taught by Balakrishnan "is not the same as the data
concerning user activity" and that Balakrishnan teaches sending those points
from the server, not the monitoring device as claimed. Id. at 7-8. Finally,
Appellants argue that Picard does not disclose alerts that include activity
data and, therefore, does not the deficiencies of Balakrishnan. Id. at 8-9.
We are not persuaded by Appellants that the Examiner erred in
relying on the combination of Balakrishnan and Picard to teach or suggest
the limitations of claim 3. We agree that Balakrishnan teaches creating a
goal (the claimed "specified value") based on activity data and that Picard
teaches that data received from sensors (the claimed "data concerning user
activity") can trigger alerts if, for example, "certain thresholds" (the claimed
"user activity exceeds a certain threshold") are crossed. Balakrishnan ,r 4 7
( stating "the system may determine whether the user has achieved a goal,
reached a milestone or the like based on an amount of activity points
accumulated"); Picard ,r 100 (stating "data received from the sensors may be
rendered by one or more devices in any manner perceptible to the human
senses, including auditory and tactile" and "in some embodiments, alerts
may be triggered by specified events (e.g., crossing certain thresholds)").
We also agree with the Examiner's finding (see Ans. 13-14) that a person of
ordinary skill in the art would have found it obvious based on these
teachings to send data received from sensors when a certain activity goal has
been exceeded. Because Picard describes a single wearable device as
gathering and sending the sensor data (see, e.g, Picard, Fig. 10), we need not
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address the argument over whether the claimed monitor must be one device
or may include an entire system.
Accordingly, we are not persuaded the Examiner erred in relying on
the combination of Balakrishnan and Picard to teach or suggest the disputed
limitations of claim 3, nor do we find error in the Examiner's resulting legal
conclusion of obviousness. Accordingly, we sustain the Examiner's
obviousness rejection of claim 3 as obvious over the combination of
Balakrishnan and Picard.
Claims 4, 5-10, 11, 12, 15, and 16
Appellants separately argue independent claims 4 and 11, but rely on
the same arguments as for claim 1. Compare Appeal Br. 11-14, 14--18 with
Appeal Br. 4--7. We do not find those arguments persuasive for the same
reasons discussed above with respect to claim 1. Accordingly, we are not
persuaded the Examiner erred in relying on the combination of Balakrishnan
and Picard to teach or suggest the disputed limitations of claims 4 and 11,
nor do we find error in the Examiner's resulting legal conclusion of
obviousness. Accordingly, we sustain the Examiner's obviousness rejection
of independent claims 4 and 11 as obvious over the combination of
Balakrishnan and Picard. The same is true for dependent claims 5-10, 12,
15, and 16, which Appellants do not argue separately.
Claims 13 and 18
Claims 13 and 18 depend from claims 11 and 4, respectively, and add
limitations related to a first and second "intermediary device." Claim 13
depends from claim 12, which in tum depends from claim 11. Claim 12
recites "wherein the story is presented to a user utilizing an intermediary
device." Claim 13 additionally recites "wherein the story is only presented
when the intermediary device is in communication with a second
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intermediary device." Appeal Br. 30 (Claims Appendix). Claim 18 depends
directly from claim 4 and recites "further comprising a first intermediary
device and a second intermediary device, wherein the interface is further
configured to present the story to a user via the first intermediary device
when the first intermediary device is in communication with the second
intermediary device." Id.
The Examiner relies on Balakrishnan as teaching the intermediary
device limitations. Final Act. 10 ( citing Balakrishnan Fig. 1, ,r 31 ); see also
Final Act. 9 ( citing Balakrishnan ,r 41) (rejecting claim 6, which Appellants
do not separately address, also reciting an intermediary device). In
particular, the Examiner points to Balakrishnan's computing devices 105 as
intermediary devices, which are in communication with monitoring devices
103, which "are interpreted to be secondary intermediary devices. "4 Final
Act. 4--5, 10. According to the Examiner, claims 13 and 18 do not "describe
the function of the second intermediary device merely that it is in
communication with a first intermediary device used for presenting a story."
Final Act. 4--5.
Appellants argue that Balakrishnan's monitoring devices 103 do not
qualify as the claimed secondary intermediary devices because they are the
actual source of the data and are, therefore, not intermediate to any other
devices. Appeal Br. 19 (claim 13), 21 (same argument for claim 18).
We agree with Appellants that the claimed "intermediary devices"
must be intermediate between two other devices. This is consistent both
with the plain and ordinary meaning of the term "intermediary" and with the
4 In the Answer, the Examiner explains that Balakrishnan's computing
devices 105 are the second intermediary devices and monitoring devices 103
are the first intermediary devices. Ans. 22.
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Specification. The Specification describes an "intermediary device" as
"configured to provide feedback concerning user activity, the feedback
concerning user activity" and may be "a computer, a smartphone, a tablet,
and a gaming console." Spec. ,r,r 10, 19. The Specification also states that
"other embodiments of the invention use any number of intermediary
devices to convey data to the activity monitor 100 or the analytics device
104, or to provide feedback to the user." Id. ,r 41. Figure 4 shows several
intermediary devices 400 between activity monitor 100 and network 108 and
describes "activity monitor 100" in communication with intermediary device
400 "that is itself in communication with analytics device 104 through
network 108." Spec. Fig. 4, ,r 53; see also ,r,r 54---62 (describing
intermediary devices). Although we agree with the Examiner that "[i]t is
unclear what entity the first intermediary device is linked to through the
second intermediary device," we do not agree that a monitoring device can
be considered an intermediary device because it "links sensor data to the
user." Ans. 22. Balakrishnan's sensor data is created by the monitoring
device itself and, therefore, the monitoring device is not intermediate
between two devices when dealing with sensor data.
We are, therefore, not persuaded that Balakrishnan' s monitoring
devices 103 qualify as "intermediary devices" because they are, themselves,
the data sources. Accordingly, we find the Examiner has not adequately
explained (and it is unclear from our review) how Balakrishnan teaches or
suggests first and second intermediary devices as required by claims 13 and
18. Accordingly, we do not sustain the Examiner's obviousness rejection of
claims 13 and 18. 5
5 The Examiner may want to further consider whether this limitation would
have been obvious in view of the teachings of Bjontegard.
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Claims 14 and 17
Claims 14 and 17 depend from claims 11 and 4 respectively and add a
limitation related to processing "a purchase transaction story for later
presentation." Appeal Br. 30 (Claims Appendix). The Examiner relies on
Bjontegard as teaching this limitation. Final Act. 11-12 (citing Bjontegard
,r,r 122-123). According to the Examiner, a person of ordinary skill in the
art would have been motivated to combine this teaching of Bjontegard to the
modified invention of Balakrishnan "to enhance user experience by
delivering displaying predictably useful and relevant content." Final Act. 12
(citing Bjontegard Abstract). The Examiner's Answer also explains that
"the feature of downloadable content for purchase is widely known and has
been available since the 1980' s" and would "increase revenue for a
company." Ans. 24, 26.
Appellants argue that the Examiner has not adequately explained why
a person of ordinary skill in the art would have been motivated to add
Bjontegard's disclosure of purchasing a transaction story to the modified
invention of Balakrishnan. Appeal Br. 23-26. According to Appellants,
because the Examiner has interpreted a story as the presentation of activity
over a certain time, "[i]t makes no sense ... to purchase a transaction story
when the activity data is already available." Id. at 24.
Bjontegard discloses combining data from a device with additional
data, including "feedback, experiences, recommendations, offers, coupons,
advice, tactile feedback, content such as visual and audio representations,
augmented reality, and other audio/visual displays to the device of the user."
Bjontegard, Abstract. Further, Bjontegard states that this additional
information can also enhance books and "[ c ]ompleting the story will be
accomplished by purchasing a product." Id. ,r,r 122-123. We, therefore,
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agree with the Examiner that Bjontegard's additional data used to enhance
an already existing story teaches or suggests "processing a purchase
transaction story for later presentation." We also agree with the Examiner
that a person of ordinary skill in the art would be motivated to add this
feature of Bjontegard to the modified invention of Balakrishnan because the
purchase of such additional content would enhance the user's experience by
supplementing the graphs and other visual displays of activity data. In
addition, we agree that this would allow for an additional method of
obtaining revenue.
We are, therefore, not persuaded of error in the Examiner's reliance
on the cited prior art combination to teach or suggest the disputed limitations
of claims 14 and 17, nor do we find error in the Examiner's resulting legal
conclusion of obviousness. Accordingly, we sustain the Examiner's
obviousness rejection of claims 14 and 17 as obvious over the combination
of Balakrishnan, Picard, and Bjontegard.
CONCLUSIONS
The Examiner did not err with respect to the rejections of claims 1-
12, 14, and 17 under 35 U.S.C. § 103(a) over the cited prior art combination
of record, and we sustain these rejections.
The Examiner erred with respect to the rejections of claims 13 and 18
under 35 U.S.C. § 103(a) over the combination of Balakrishnan and Picard,
and we reverse those rejections.
DECISION
We AFFIRM the Examiner's decision rejecting claims 1-12, 14--16,
and 17.
We REVERSE the Examiner's decision rejecting claims 13 and 18.
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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. § 41.50(±).
AFFIRMED-IN-PART
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