Ex Parte Yin et al

Patent Trial and Appeal Board

Dec 21, 2018

13144379 (P.T.A.B. Dec. 21, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
13/144,379 07/13/2011 Bin Yin
24737 7590 12/26/2018
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.
2009P00068WOUS 5243
EXAMINER
KUAN, JOHN CHUNY ANG
ART UNIT PAPER NUMBER
2857
NOTIFICATION DATE DELIVERY MODE
12/26/2018 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 BIN YIN and PAUL US HENRICUS ANTONIUS DILLEN I
Appeal2017-009020
Application 13/144,379
Technology Center 2800
Before JAMES C. HOUSEL, MONTE T. SQUIRE, and
BRIAND. RANGE, Administrative Patent Judges.
SQUIRE, Administrative Patent Judge.
DECISION ON APPEAL 1
Appellants2 appeal under 35 U.S.C. § 134(a) from the Examiner's
decision to reject claims 1 and 3-20, which constitute all the claims pending
in this application. 3 35 U.S.C. § 134(a). We have jurisdiction under
35 U.S.C. § 6(b).
1 In explaining our Decision, we refer to the Specification filed July 13,
2011 ("Spec."); Final Office Action dated May 25, 2016 ("Final Act.");
Appeal Brief filed January 19, 2017 ("Appeal Br."); Examiner's Answer
dated April 6, 2017 ("Ans."); and Reply Brief filed June 6, 2017 ("Reply
Br.").
2 Koninklijke Philips Electronics N.V. is identified as the real party in
interest. Appeal Br. 1.
3 Claim 2 is canceled. Appeal Br. 1.
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Application 13/144,379
We AFFIRM.
The Claimed Invention
The claimed subject matter relates to a method and device for
estimating energy consumption of a person, which uses a mathematical
model based on acceleration data for estimating the person's energy
consumption as a function of the actual performed activity and acceleration
values. Abstract; Spec. 7. According to Appellants' Specification, the
acceleration values are mathematically converted to an estimate of energy
consumption by scaling a value of time integrated acceleration data with an
activity scaling parameter. Spec. 7, 11. 14--16. The activity scaling
parameters for different activities are determined off-line by comparing
measured energy consumptions over a period of time with estimated energy
consumptions over the same period, where the estimated values are
determined using the mathematical model. Id. at 7, 11. 16-20; see also
Abstract.
Claim 8 is illustrative of the claimed subject matter on appeal and is
reproduced below from the Claims Appendix to the Appeal Brief:
8. A method for determining, on a portable device
having at least one input port, a processor, and a memory
having instructions for determining an energy
expenditure stored thereon to be executed by the
processor, the energy expenditure of a user performing a
plurality of activities, the method comprising acts of:
for each activity of the plurality of activities of a
plurality of users:
measuring energy expenditure values and
acceleration data over a predetermined period using at
least one sensor, wherein the acceleration data represents
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movement of an accelerometer device worn by respective
users of the plurality of users;
calculating by the processor values of
energy expenditure of activities of the users in a loop to
determine constant parameters and scaling parameters
in accordance with a single mathematical model stored
in the memory;
minimizing by the processor a difference
between the measured energy expenditure values and
the calculated energy expenditure values; and
determining by the processor an activity
value of a current activity of the plurality of activities
per/ ormed by a user of the plurality of users by
accumulating acceleration data of the current activity
from the user for a duration of the current activity,
wherein the minimizing act comprises
performing an act of obtaining an activity count value for
each data pair of the measured energy expenditure values
and the acceleration data over the predetermined period
of each user by accumulating the product of the scaling
parameters and activity values over the activities during
the predetermined period, whereby the scaling
parameters adapt application of the single mathematical
model to human-worn accelerometer data generated
according to any of the plurality of activities.
Claims Appendix, fourth page (key disputed claim language italicized
and bolded).
The References
The Examiner relies on the following prior art references as evidence
in rejecting the claims on appeal:
Nishibayashi et al., US 2007 /0238938 Al Oct. 11, 2007
(hereinafter "Nishibayashi")
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Goris et al., US 2008/0281234 Al Nov. 13, 2008
(hereinafter "Goris")
Chen et al., Improving energy expenditure estimation by using a
triaxial accelerometer, J. Appl. Physiol. 83:2112-2122 (1997)
(hereinafter "Chen").
Choi et al., Estimation of Activity Energy Expenditure: Accelerometer
Approach, Proceedings of the 2005 IEEE, Engineering in Medicine
and Biology 27th Annual Conference, 3830-3833 (2005)
(hereinafter "Choi").
The Rejections
On appeal, the Examiner maintains (Ans. 2) the following rejections:
1. Claims 1 and 3-20 are rejected under 35 U.S.C. § 101 as being
directed to non-statutory subject matter ("Rejection 1 "). Final Act. 2-13.
2. Claim 20 is rejected under pre-AIA 35 U.S.C. § I03(a) as being
unpatentable over Nishibayashi in view of Choi, Chen, and Goris
("Rejection 2"). Final Act. 14--18.
OPINION
Having considered the respective positions advanced by the Examiner
and Appellants in light of this appeal record, we affirm the Examiner's
rejections based on the fact-finding and reasoning set forth in the Answer
and Final Office Action, which we adopt as our own. We add the following
and highlight and address specific findings and arguments below.
Reiection 1
Appellants argue claims 1 and 3-20 as a group. Appeal Br. 8, 19. We
select claim 8 as representative and the remaining claims subject to the
Examiner's rejection stand or fall with claim 8. 37 C.F.R. § 4I.37(c)(l)(iv).
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The Examiner determines that Appellants' claimed invention is
unpatentable under 35 U.S.C. § 101 because it is directed to non-statutory
subject matter. Final Act. 2. In particular, the Examiner determines that
claim 8 is directed to the abstract idea of an algorithm or mathematical
relations (i.e., "a single mathematical model") for calculating values of
energy expenditure of activities of the users to determine constant
parameters and scaling parameters. Id. at 7. The Examiner finds that the
recited steps are directed to "organizing data through mathematical
correlations or algorithms, similar to the concepts found abstract previously
by the courts." Id. at 3 (citing cases). The Examiner further finds that the
claim does not include additional elements that are sufficient to amount to
significantly more than the judicial exception because the additional
elements are "necessary, routine, or conventional to facilitate the application
of the abstract idea." Id. at 7.
For example, the Examiner finds that
The ports and memory are recited at a high level of
generality and are necessary or conventional in
connection with the use of the processor. The step of
obtaining measurement of energy expenditure values and
acceleration data is recited at a high level of generality,
and is necessary for obtaining data for the abstract idea.
Final Act. 7. See also Ans. 5---6 (finding that the "measurement of
acceleration data is a step which is now well-understood, routine, and
conventional"); id. at 9--10; Spec. 1-2 (disclosing the use of known devices
and methods in the art for measuring energy expenditure using acceleration
data).
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The Examiner determines that "[ w ]hen considered separately and in
combination, the additional elements do not add significantly more to the
exception" and thus, do "not meaningfully limit the claim." Final Act. 7-8;
see also Ans. 9-10. The Examiner further determines that the additional
elements or combination of elements recited in the claims other than the
abstract idea amount to no more than instructions for executing the idea
using a general purpose computer. Final Act. 7 ( citing Alice Corp. Pty. Ltd.
v. CLS Bankint'l, 134 S. Ct. 2347, 2350 (2014)); see also Elec. Power Grp.
v. Alstom S.A., 830 F.3d 1350, 1353 (Fed. Cir. 2016)).
Appellants argue that the Examiner's rejection should be reversed
because the claims are not directed to an abstract idea, but instead, are
directed to a "Process, Machine, or Manufacture." Appeal Br. 10-11; see
also Reply Br. 2-3. Appellants contend that, as opposed to an abstract idea,
"claim 8 and its dependents are to a 'process' under Step 1" of the § 101
analysis. Appeal Br. 10. Appellants further contend that claim 8 is not
directed to any judicial exception because the subject matter of the claim
is rooted in health management, addresses a specific
problem of calculating energy expenditure for users
performing a variety of different activities, is tied to
particular structure, and improves the operation of a
computing device.
Id. at 13.
Appellants also contend the Examiner has failed to identify an abstract
idea "similar to a concept previously addressed by the courts" (id. at 10) and
oversimplifies the claims by reducing "the many specific limitations of the
claims to 'math"' (id. at 12) (quoting McRO, Inc. v. Bandai Namco Games
America, Inc., 837 F.3d 1299, 1313 (Fed. Cir. 2016)).
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Appellants argue that the claims recite significantly more than an
abstract idea. Appeal Br. 15; see also Reply Br. 6. In particular, Appellants
contend the claims "clearly do not seek to preempt any and all ways to
estimate energy expenditure of a user" and thus, "leave[] ample room for
activity and innovation under almost any characterization of an abstract
idea." Appeal Br. 15. Appellants also contend the claims do not tie up the
field of energy expenditure estimation because "there are a myriad of other
ways of 'accounting for differences in measurements from multiple types of
activities' or 'estimating energy expenditure."' Id. at 16.
Lastly, Appellants argue the claims are directed to an improvement to
the functioning of a computer because they "specifically recite that a single
mathematical model is stored in memory and adapted to multiple types of
activities" and "only enough memory is needed to store a single
mathematical model, rather than a different model for each type of activity."
Id. at 17.
We do not find Appellants' arguments persuasive of reversible error
in the Examiner's rejection. The Supreme Court's decision in Alice
identifies a two-step framework for determining whether claimed subject
matter is judicially-excepted from patent eligibility under § 101. According
to Alice step one, "[ w ]e must first determine whether the claims at issue are
directed to a patent-ineligible concept," such as an abstract idea. Alice, 134
S. Ct. at 2355.
Step two of the Alice framework is "a search for an 'inventive
concept'-i.e., an element or combination of elements that is 'sufficient to
ensure that the patent in practice amounts to significantly more than a patent
upon the [ineligible concept] itself."' Id. at 2355 (quoting Mayo
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Collaborative Servs. v. Prometheus Labs., Inc., 566 U.S. 66, 72 (2012)). In
applying step two, we must determine whether there are any "additional
features" in the claims that constitute an "inventive concept," Alice, 134 S.
Ct. at 2357, and whether those "additional features" amount to more than
merely "well-understood, routine, conventional activity." Mayo, 566 U.S at
79.
Beginning with the first step of the Alice framework, we look at
claim 8 to determine whether it is directed to an abstract idea. Claim 8
recites a method for determining the energy expenditure of a user
comprising the following principal steps: (1) "measuring energy expenditure
values and acceleration data"; (2) "calculating by the processor values of
energy expenditure of activities of the users ... with a single mathematical
model stored in the memory"; (3) "minimizing by the processor a difference
between the measured energy expenditure values and the calculated energy
expenditure values"; and (4) "determining by the processor an activity value
of a current activity ... by accumulating acceleration data." Claims
Appendix, fourth page.
The Specification discloses that the mathematical model is based on
acceleration data for estimating the person's energy consumption as a
function of the actual performed activity and acceleration values and the
acceleration values are mathematically converted to an estimate of energy
consumption by scaling a value of time integrated acceleration data with an
activity scaling parameter. Spec. 7. The Specification further discloses that
the activity scaling parameters are determined off-line by comparing
measured energy consumptions over a period of time with estimated energy
consumptions using the mathematical model. Id. at 7. See also id. at 9--18
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( disclosing mathematical models and formulas for performing calculations
and determining parameters in accordance with claimed method).
Based on the language of the claim and the Specification, we concur
with the Examiner that claim 8 is, at its core, directed to the abstract idea of
a mathematical algorithm, i.e., calculating values of energy expenditure of
activities of the users by collecting, processing, and mathematically
manipulating data using a mathematical model. Intellectual Ventures I LLC
v. Capital One Financial Corporation, 850 F.3d 1332, 1340 (Fed. Cir. 2017)
(holding claims ineligible under § 101 where the "concept related to the
collection, display, and manipulation of data"); Elec. Power Grp. v. Alstom
S.A., 830 F.3d 1350, 1353 (Fed. Cir. 2016) (holding that "collecting
information, analyzing it, and displaying certain results of the collection and
analysis" are "a familiar class of claims 'directed to' a patent-ineligible
concept").
The fact that the mathematical model relates to estimating energy
consumption of a person as a function of the actual performed activity and
acceleration values and the claimed invention may be implemented using
general purpose computer equipment (i.e., "on a portable device having at
least one input port, a processor, and a memory having instructions" and
"executed by the processor") does not render the claim patent-eligible or the
underlying idea any less abstract. See Alice, 134 S. Ct. at 2358 (holding that
"the mere recitation of a generic computer cannot transform a patent-
ineligible abstract idea into a patent-eligible invention").
The Federal Circuit has explained that, in determining whether claims
are patent-eligible under Section 101, "the decisional mechanism courts now
apply is to examine earlier cases in which a similar or parallel descriptive
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nature can be seen-what prior cases were about, and which way they were
decided." Amdocs (Israel) Ltd. v. Openet Telecom, Inc., 841 F.3d 1288,
1294 (Fed. Cir. 2016). On the record before us, we agree with the
Examiner's determination that Appellants' claims are, indeed, similar to
those found to be patent-ineligible in prior cases, particularly because, as the
Examiner finds the claimed invention is directed to "organizing data through
mathematical correlations or algorithms, similar to the concepts found
abstract previously by the courts." Final Act. 3 ( citing Gottschalk v. Benson,
409 U.S. 63, 67 (1972), Parker v. Flook, 437 U.S. 584, 594 (1978),
Diamond v. Diehr, 450 U.S. 175, 188 (1981), In re Grams, 888 F.2d 835
(Fed. Cir. 1989), and Digitech Image Tech., LLC v. Electronics for Imaging,
Inc., 758 F.3d 1344, 1350-51 (Fed. Cir. 2014) as exemplary cases).
As the Examiner explains (Ans. 11 ), like the claims in Parker v.
Flook, claim 8, for example, essentially employs mathematical algorithms to
manipulate existing or collected information to generate additional
information. Flook, 437 U.S. at 595 ("If a claim is directed essentially to a
method of calculating, using a mathematical formula, even if the solution is
for a specific purpose, the claimed method is nonstatutory.").
In contrast, unlike the claims found to be non-abstract in prior cases,
Appellants' claimed invention is directed to the use of a mathematical
algorithm for performing calculations and does not recite or provide an
actual improvement to a particular computer technology. See, e.g., McRO,
837 F.3d at 1314 (finding claims not abstract because they "focused on a
specific asserted improvement in computer animation"). In particular, as the
Examiner finds (Ans. 5, 7-8) and unlike the improvements to a computer-
related technology found to be patentable by the courts in Enfzsh, LLC v.
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Microsoft Corporation, 822 F.3d 1327, 1335 (Fed. Cir. 2016) andMcRO,
claim 8 does not provide any improvement in the function or operation of
the computer device or processor itself. Rather, as the Examiner explains
(Ans. 5---6), the "on a portable device having at least one ... processor" and
"executed by the processor" recitations of the claims are merely present to
efficiently perform the necessary calculations. See Bancorp Services, LLC v.
Sun Life Assurance Co., 687 F.3d 1266, 1278 (Fed. Cir. 2012) ("[T]he fact
that the required calculations could be performed more efficiently via a
computer does not materially alter the patent eligibility of the claimed
subject matter.").
Moreover, the steps of "calculating by the processor values of energy
expenditure of activities of the users," "minimizing by the processor a
difference between the measured energy expenditure values and the
calculated energy expenditure values," and "determining by the processor an
activity value of a current activity" recited in claim 8 (steps (2), (3), and (4)
enumerated above), because they principally involve use of a mathematical
model to perform calculations, could each conceivably be performed using
mental steps, pen, and paper. See Intellectual Ventures I LLC v. Symantec
Corp., 838 F.3d 1307, 1318 (Fed. Cir. 2016) (claims directed to an abstract
idea, where "with the exception of generic computer-implemented steps,
there is nothing in the claims themselves that foreclose them from being
performed by a human, mentally or with pen and paper"); see also Elec.
Power Grp., 830 F.3d at 1354 (treating "analyzing information by steps
people go through in their minds, or by mathematical algorithms, without
more, as essentially mental processes within the abstract-idea category").
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Appellants' assertion that the claims are directed to an improvement
to the functioning of a computer because they "specifically recite that a
single mathematical model is stored in memory and adapted to multiple
types of activities" and "only enough memory is needed to store a single
mathematical model, rather than a different model for each type of activity"
(Appeal Br. 17) is not persuasive of reversible error in the Examiner's
rejection because it is conclusory and Appellants' do not provide an
adequate technical explanation to support it. In re De Blauwe, 736 F.2d 699,
705 (Fed. Cir. 1984).
Turning to the second step of Alice, we determine claim 8 does not
contain an inventive concept sufficient to "'transform the nature of the
claim' into a patent-eligible application." Alice, 134 S. Ct. at 2355. In
particular, based on the fact-finding and reasons provided by the Examiner
in the Answer and the Final Office Action (Ans. 2-13; Final Act. 2--4), we
concur with the Examiner's determination that each of the steps of claim 8,
considered both individually and as an ordered combination, is conventional,
and does not amount to significantly more than the implementation of the
abstract idea of determining the energy expenditure of a user by collecting,
processing, and mathematically manipulating data using a mathematical
model. See Alice, 134 S. Ct. 2357 (finding "conventional steps" insufficient
to supply an "inventive concept").
As the Examiner finds (Final Act. 7; Ans. 8-10), claim 8 recites and
the Specification discloses a general purpose computer and
generic/conventional computing components for performing the steps of the
method. See, e.g., Spec. 8 ( disclosing general purpose "processor 150, for
example a digital processing unit ... used to process acceleration data"), id.
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at 8 ( disclosing use of computer memory, i.e., "data storage 151 for storing
constant parameters ... and activity scaling parameters"), id. at 8
( describing use of ports, i.e., "data input 11 O"). Moreover, the claimed
invention does not require or recite a special/unique ordered combination of
method steps for performing the mathematical computations. Rather, as
discussed above, we find that the recited steps are nothing more than
instructions to gather and manipulate data implemented using conventional
data processing and computer equipment. Mayo, 566 U.S. at 82 ( explaining
that pre- or post-solution activities that are "purely 'conventional or obvious
... can[not] transform an unpatentable principle into a patentable process"')
(quoting Parker v. Flook, 437 U.S. at 589--90).
Appellants also do not adequately explain what element or
combination of elements transforms the nature of the claim into significantly
more than a patent upon the ineligible concept itself. Appellants' assertions
that the claims "do not seek to preempt any and all ways to estimate energy
expenditure of a user" and "leave[] ample room for activity and innovation
under almost any characterization of an abstract idea" (Appeal Br. 15) and
do not tie up the field of energy expenditure estimation because "there are a
myriad of other ways of 'accounting for differences in measurements from
multiple types of activities' or 'estimating energy expenditure"' (id. at 16)
are not persuasive because they are conclusory and Appellants does not
provide an adequate technical explanation to support them. De Blauwe, 736
F.2d at 705. Moreover, a patent-ineligible abstract idea is not transformed
into a patent-eligible invention merely by "limit[ing] the use of [an abstract
idea] 'to a particular technological environment."' Alice, 134 S. Ct. at 2358
(quoting Bilski v. Kappas, 561 U.S. 593, 610-11 (2010)).
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We, therefore, determine that claim 8 is directed to an abstract idea
and fails to recite an inventive concept sufficient to transform the abstract
idea into patent-eligible subject matter.
Although independent claims 1 and 20 are directed to a "device for
determining an energy expenditure of a user" ( claim 1) and a "device for
estimating energy expenditure of a user" ( claim 20), respectively, each of
these claims recites limitations similar to the method steps of claim 8.
Compare claim 8 (Claims Appendix, fourth page) with, claim 1 (Claims
Appendix, first and second pages) and claim 20 (Claims Appendix, seventh
and eighth pages).
Thus, for principally the same reasons discussed above with respect to
claim 8, we determine that claims 1 and 20 are likewise directed to the
abstract idea of collecting, analyzing, and mathematically manipulating data
and do not contain an inventive concept sufficient to transform the nature of
the claim into a patent-eligible application. Alice, 134 S. Ct. at 2355; see
also Intellectual Ventures I, 838 F.3d at 1340 (holding method, systems, and
apparatus claims of a patent "ineligible under § 101 for reciting similar data
manipulation steps").
Accordingly, we affirm the Examiner's rejection of claims 1 and 3-20
under 35 U.S.C. § 101 as being directed to non-statutory subject matter.
Reiection 2
Claim 20 recites:
A device for estimating energy expenditure of a
user using wearable accelerometer data, the device
compnsmg:
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an interface for receiving acceleration data from an
accelerometer device that is worn by a user;
a memory that stores:
a single mathematical model for processing
input acceleration data into an output energy expenditure
estimate for accelerating data gathered according to any
of a plurality of activities performed by the user, and
a plurality of scaling parameters correlated
to respective ones of the plurality of activities, wherein
the scaling parameters are determined by minimizing a
difference between an estimation energy expenditure
value and a measured energy expenditure value and adapt
the single mathematical model to accelerometer data
generated according to any of the plurality of activities;
and
a processor in communication with the interface
and the memory, the processor being configured to:
receive current acceleration data via the interface,
determine a current activity of the plurality of
activities to which the current acceleration data
corresponds,
retrieve a scaling parameter of the plurality of
scaling parameters corresponding to the determined
current activity, and
apply the single mathematical model to the current
acceleration data to obtain a current energy expenditure
value, wherein application of the single mathematical
model comprises:
multiplying the current acceleration data by
the retrieved scaling parameter to obtain scaled
acceleration data, whereby the retrieved scaling
parameter adapts the application to the single
mathematical model to the current activity of the
plurality of activities.
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Claims Appendix, seventh and eighth pages.
The Examiner determines that the combination ofNishibayashi, Choi,
Chen, and Goris suggests a device satisfying all of the limitations of claim
20 and thus, concludes that the combination would have rendered the claim
obvious. Final Act. 14--18 (citing Nishibayashi, Abstract, ,r,r 44, 47, 58, 60,
63, Figs. 1, 6; Choi 3831; Chen 2114--2116; Goris ,r 11).
Appellants argue that the Examiner's§ 103 rejection of claim 20
should be reversed because
no combination of Nishibayashi, Choi, Chen, and Goris teaches
or suggests a device for estimating energy expenditure of a user
using wearable accelerometer data that includes retrieving a
scaling parameter corresponding to a current activity from a
plurality of scaling parameters and multiplying acceleration
data by the retrieved scaling parameter to obtain scaled
acceleration data.
Appeal Br. 20-21. Appellants argue that none of the cited references
teaches or suggests activity-based scaling of acceleration data. Id. at 21-22.
In particular, Appellants contend that: (1) there is "no discussion of scaling
parameters that are correlated to a specific activity" in Nishibayashi (id. at
21 ); (2) Choi does not teach or suggest "activity-based scaling of energy
expenditure data" (id. at 21-22); and (3) neither Chen nor Goris teaches or
suggests activity-based scaling of acceleration data using scaling parameters
that correspond to a particular activity (id. at 22).
We do not find Appellants' arguments persuasive of reversible error
based on the fact-finding and reasoning provided by the Examiner at pages
13-16 of the Answer and pages 14--18 of the Final Office Action. On the
record before us, we find that a preponderance of the evidence and sound
technical reasoning support the Examiner's analysis and determination that
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the combination suggests a device satisfying all of the limitations of claim
20, and the Examiner's conclusion that the combination would have
rendered the claim obvious. Nishibayashi, Abstract, ,r,r 44, 47, 58, 60, 63,
Figs. 1, 6; Choi 3 831; Chen 2114--2116; Goris ,r 11.
The Examiner also provides a reasonable basis and identifies a
preponderance of the evidence in the record to evince why one of ordinary
skill would have combined the teachings of the cited references to arrive at
Appellants' claimed invention. Final Act. 17-18. See also KSR Int 'l Co. v.
Teleflex, Inc., 550 U.S. 398, 420 (2007) (explaining that any need or
problem known in the art can provide a reason for combining the elements in
the manner claimed).
Appellants fail to direct us to sufficient evidence or provide an
adequate technical explanation to establish why the Examiner's articulated
reasoning for combining the teachings of the prior art to arrive at the claimed
invention lacks a rational underpinning or is otherwise based on some other
reversible error.
We do not find Appellants' contention that there is "no discussion of
scaling parameters that are correlated to a specific activity" in Nishibayashi
persuasive for the well-stated reasons provided by the Examiner at pages
14--15 of the Answer. As the Examiner finds (Ans. 21) and Appellants do
not rebut, the coefficient or factor (i.e., b2*W) of Nishibayashi's model (see
Nishibayashi ,r 63) corresponds to the "scaling parameter" recited in the
claim. See also Final Act. 15-16. As the Examiner further finds (Ans. 15)
and Appellants do not rebut, coefficient "a" of Choi's model (see Choi 2831)
likewise corresponds to the "scaling parameter" recitation of claim 20.
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Appellants' contention that Choi does not teach or suggest activity-
based scaling of energy expenditure data (Appeal Br. 21-22) is equally
unpersuasive. As the Examiner finds (Ans. 15) and contrary to what
Appellants argue, Choi does teach activity-based scaling of energy
expenditure estimation data as claimed. See Choi 3 831 ( disclosing that
"[t]he coefficients, a and b were determined at each subject and each activity
type" and "perform[ing] a linear regression to estimate the linear model for
each activity type of walking and running"), 3830 (discussing "the
dependency of calorie cost upon activity type" and "the differences of the
calorie-activity relationship on activity type"). As the Examiner further
finds (Ans. 15), based on Choi's disclosures that the coefficients are
"functions of gender, age, height, and mass" (Choi 3831) and of differences
based on activity type (id. at 3830), the reference would have taught or
suggested to one of ordinary skill that scaling coefficients depend on the
specific type of activity undertaken and different coefficient values are
required for different types of activity.
Appellants' arguments regarding the Chen and Choi references and
that neither reference teaches or suggests activity-based scaling of
acceleration data (Appeal Br. 21-22) are not persuasive because they are
premised on what each reference teaches individually, and not the combined
teachings of the references as a whole and what the combined teachings
would have suggested to one of ordinary skill in the art. One cannot show
non-obviousness by attacking references individually where the rejection is
based on a combination of references. In re Keller, 642 F.2d 413, 425
(CCPA 1981). Appellants' arguments in this regard are misplaced because,
as discussed above, the Examiner relies on Choi for teaching activity-based
18
Appeal2017-009020
Application 13/144,379
scaling of acceleration data (Ans. 15-16) and not on Chen or Goris for this
feature.
Accordingly, we affirm the Examiner's rejection of claim 20 under
35 U.S.C. § 103 as obvious over the combination ofNishibayashi, Choi,
Chen, and Goris.
DECISION/ORDER
The Examiner's rejections of claims 1 and 3-20 are affirmed.
It is ordered that the Examiner's decision 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).
AFFIRMED
19