2020004861 (P.T.A.B. Jan. 1, 2021)

iHeartMedia Management Services, Inc.

Patent Trials and Appeals BoardJan 1, 2021

2020004861 (P.T.A.B. Jan. 1, 2021)

UNITED STATES PATENT AND TRADEMARK OFFICE 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 APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO. 15/177,699 06/09/2016 Richard Wooden 379-OAG-02-2010 2073 88979 7590 01/01/2021 Garlick & Markison (CCO) 100 Congress Avenue, Suite 2000 Austin, TX 78701 EXAMINER NETZLOFF, ERIC R ART UNIT PAPER NUMBER 3688 NOTIFICATION DATE DELIVERY MODE 01/01/2021 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): MMurdock@TEXASPATENTS.COM bpierotti@texaspatents.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte RICHARD WOODEN ____________ Appeal 2020-004861 Application 15/177,6991 Technology Center 3600 ____________ Before, JOSEPH A. FISCHETTI, MICHAEL C. ASTORINO, and TARA L. HUTCHINGS, Administrative Patent Judges. FISCHETTI, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Appellant seeks our review under 35 U.S.C. § 134 of the Examiner’s final rejection of claims 1–20. We have jurisdiction under 35 U.S.C. § 6(b). SUMMARY OF DECISION We AFFIRM. 1 Appellant identifies Clear Channel IP, LLC as the real party in interest. Appeal Br. 2. Appeal 2020-004861 Application 15/177,699 2 THE INVENTION Appellant states, “[e]mbodiments are . . . related to [a] wearable eye tracking and brain activity-sensing device that communicate[s] advertising impression data to data processing devices.” Specification 1:19–21. Claim 1 reproduced below, is representative of the subject matter on appeal. A system for acquiring user signage viewing, the system comprising: a processor; a data bus coupled to the processor; and a computer-usable medium embodying computer code, the computer- usable medium being coupled to the data bus, the computer code comprising instructions executable by the processor and configured for: determining a location, an outline, and particular content presented by at least one sign in at least three-dimensional space; determining, utilizing data received from a user head-mountable eye- tracking device coupled to the processor, a location of a user in the at least three-dimensional space and orientation of an eyeball of the user; determining, based on the location and orientation, a three- dimensional field of view of the eye of the user in the at least three- dimensional space; determining whether the outline of the at least one sign is within the three-dimensional field of view of the eye of the user at the location; determining, based on the determining whether the outline is within the field of view of the eye of the user, that the particular content presented by the at least one sign has provided an impression to the user, wherein the determining includes detecting changes in polarity of the eyeball of the user when viewing the at least one sign and correlating these changes to human brain reactions to acquire the impression to the user of the at least one sign; and sending a determined impression as impression data to a remote computer processor communicatively coupled to the processor, and wherein the determined impression assists in determining effectiveness of specific content of the at least one sign. Appeal 2020-004861 Application 15/177,699 3 THE REJECTION The Examiner relies upon the following as evidence of unpatentability: Nasser US 2008/0170755 A1 July 17, 2008 Marci US 2010/0004977 A1 Jan. 7, 2010 Lee US 2010/0218887 A1 May 27, 2010 Wysocki US 2012/0157118 A1 June 21, 2012 Manabe, Hiroyuki, Full-time Wearable Headphone-type Gaze Detector, CHI Work-in-Progress, April 22–27 (2006). The following rejections are before us for review. Claims 1–20 are rejected under 35 U.S.C. § 112(a). Claims 1–3, 5–12, and 18–20 are rejected under 35 U.S.C. § 103(a) as being unpatentable over Nasser, Manabe, and Marci. Claim 4 is rejected under 35 U.S.C. § 103 as being unpatentable over Nasser, Manabe, Marci, and Lee. Claims 13–17 are rejected under 35 U.S.C. § 103 as being unpatentable over Nasser, Manabe, Marci, and Wysocki. FINDINGS OF FACT 1. We adopt the Examiner’s findings as set forth on pages 9–12 in the Answer2 and pages 8–41 in the Final Office Action concerning only the 35 U.S.C. § 103(a) Rejection. 2 Answer dated April 20, 2020. Appeal 2020-004861 Application 15/177,699 4 2. The Examiner found concerning the combination of Nasser in view of Manabe: Nasser discloses determining, utilizing data received from a user head-mountable eye-tracking device coupled to the processor, a location of a user in the at least three dimensional space and See, “For example, headgear to be worn by a member of the field force ll3 may be provided with an inertial sensor, a transparent partial (one-eye) visor, a digital camera and a rangefinder. To control a pedestrian-based MAST, the user adjusts his head position to look at a media site through the one-eye visor to target the media site and to perform the distance measurement using the rangefinder 520.” [0077]. Nasser does not disclose orientation of an eyeball of the user; However, Manabe discloses how the orientation of an eye ball can be determined and used with a camera and mobile device to identify surrounding object in the user field of view. See, “A headphone-type gaze detector for a full-time wearable interface is proposed. It uses a Kalman filter to analyze multiple channels of EOG signals measured at the locations of headphone cushions to estimate gaze direction.” [Abstract page 1073] and Figure 1. See entire article for how this is done. [1073-1078]. See also, “When the gaze detector is supplemented with a video camera and a wireless communication device and the surrounding objects have identifying tags like QR codes, the user can get information about the object of interest simply by gazing it.” [Possible applications 1078]. (Final Act. 10). 3. The Examiner concluded: [t]herefore, from the teaching of Manabe, it would have been obvious to one having ordinary skill in the art before the Appeal 2020-004861 Application 15/177,699 5 effective filing date of the claimed invention for the head mounted mobile device used to determine a person's field of view and whether an advertisement is [visible], as disclosed by Naser, to use the headphones that capable of tracking a user eyeball, as taught by Manabe, for the purpose of gathering information about objects of interest. [Possible applications 1078]. (Final Act. 14–15). 4. Nasser discloses In some example implementations, vehicular-based or pedestrian-based MAST's can be configured to be controlled using a head-mounted controller. For example, headgear to be worn by a member of the field force 113 may be provided with an inertial sensor, a transparent partial (one-eye) visor, a digital camera and a rangefinder. To control a pedestrian-based MAST, the user adjusts his head position to look at a media site through the one-eye visor to target the media site and to perform the distance measurement using the rangefinder 520. The angles used to compute the height of the media site can be derived from the orientation of the user’s head. To control a vehicular-based MAST, the transparent partial (one-eye) visor positioned over a user's eye could be used to locate and target a media site. The inertial sensor in the helmet can be used to generate motion and direction information based on a person's detected head movements to control the example pan-tilt mechanism 525 to position the cameras 510 and 515 and the rangefinder 520. The angles used to compute the height of the media site can be derived from the orientation of the user's head. To control a vehicular-based MAST, the transparent partial (one-eye) visor positioned over a user's eye could be used to locate and target a media site. The inertial sensor in the helmet can be used to generate motion and direction information based on a person's detected head movements to control the example pan-tilt mechanism 525 to position the cameras 510 and 515 and the rangefinder 520. Appeal 2020-004861 Application 15/177,699 6 ¶ 77. 5. Manabe discloses: A headphone-type gaze detector for a full-time wearable interface is proposed. It uses a Kalman filter to analyze multiple channels of EOG signals measured at the locations of headphone cushions to estimate gaze direction. Evaluations show that the average estimation error is 4.4° (horizontal) and 8.3° (vertical), and that the drift is suppressed to the same level as in ordinary EOG. The method is especially robust against signal anomalies. Selecting a real object from among many surrounding ones is one possible application of this headphone gaze detector. p. 1073. ANALYSIS 35 U.S.C. § 112(a) REJECTION The Examiner rejected claims 1–20 under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA), first paragraph, as failing to comply with the enablement requirement. In so doing, the Examiner found: Claims 1-20 include determining user location and the orientation of an eyeball, as well as monitory brainwaves, via a head worn device. The specification discloses a head mounted device (claims 1 and 20), ear-mountable eye tracking device (claim 18) and a network location system, such as a wireless local area network location system, a GPS system, or a beacon type system, for example. However, this subject matter does not enable one skilled in the art to make or use a wearable eye tracking device capable of detecting brain activity and eye Appeal 2020-004861 Application 15/177,699 7 polarity then using this information along with the user's location to arrive at the user field of view. (Final Act. 3). The applicable standard for determining enablement is the Wands factors. “[T]o be enabling, the specification of a patent must teach those skilled in the art how to make and use the full scope of the claimed invention without ‘undue experimentation.’” In re Wright, 999 F.2d 1557, 1561 (Fed. Cir. 1993). Factors to consider include “(1) the quantity of experimentation necessary, (2) the amount of direction or guidance presented, (3) the presence or absence of working examples, (4) the nature of the invention, (5) the state of the prior art, (6) the relative skill of those in the art, (7) the predictability or unpredictability of the art, and (8) the breadth of the claims.” In re Wands, 858 F.2d 731, 737 (Fed. Cir. 1988). We have reviewed the Examiner’s findings on pages 3–7 of the Final Action and on pages 4–9 of the Answer. The Examiner correctly sets forth the elements of the Wands factors, which are required findings for establishing a prima case under enablement. (Answer 6–7). But, at best, the Examiner addresses only some of these factors, such as, “parameters that would need to be tested to build a device having the required combination of technical features.” (Answer 9). The Examiner makes a conclusory determination without an element-by-element analysis of the required Wands factors. Id. Therefore, we cannot sustain the rejection of claims 1– 20 as not enabled under 35 U.S.C. § 112(a). See M.P.E.P § 2164.01 (a). Appeal 2020-004861 Application 15/177,699 8 35 U.S.C. § 103(a) REJECTION We will affirm the rejection of claims 1–20 under 35 U.S.C. § 103(a). The Appellant argues independent claims 1, 18, and 20 as a group. (Appeal Br. 20). We select claim 1 as the representative claim for this group, and so the remaining independent claims stand or fall with claim 1. See 37 C.F.R. § 41.37(c)(1)(iv) (2015). Claim 1 recites, in pertinent part, the steps of: determining, utilizing data received from a user head-mountable eye- tracking device coupled to the processor, a location of a user in the at least three-dimensional space and orientation of an eyeball of the user; determining, based on the location and orientation, a three- dimensional field of view of the eye of the user in the at least three- dimensional space. The Examiner found that: Nasser discloses determining, utilizing data received from a user head-mountable eye-tracking device coupled to the processor, a location of a user in the at least three dimensional space and See, “For example, headgear to be worn by a member of the field force 113 may be provided with an inertial sensor, a transparent partial (one-eye) visor, a digital camera and a rangefinder. To control a pedestrian-based MAST, the user adjusts his head position to look at a media site through the one-eye visor to target the media site and to perform the distance measurement using the rangefinder 520.” [0077]. (Final Act. 10, (FF. 2)). Appeal 2020-004861 Application 15/177,699 9 The Examiner concluded: it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention for the head mounted mobile device used to determine a person's field of view and whether an advertisement is [visible], as disclosed by Nas[s]er, to use the headphones that capable of tracking a user eyeball, as taught by Manabe, for the purpose of gathering information about objects of interest. [Possible applications 1078]. (Final Act. 14–15, (FF. 3)). Appellant argues, Even if the camera is head mounted, unless the camera was specifically located in front of the eyeball, it would have a geometrically different location (e.g., height, distance, center point, etc.). While illustrating various angles and distances, no teaching is provided that determines a field of view of the user's eye based on the location and orientation of the eyeball. In fact, the user's eyeball is not a required element of a calculation in Nasser, as the process can equally be performed from vehicular- based systems (without a user). Rather, Nasser is concerned with distance and orientation of a camera. In other words, Nasser lacks a nexus between the headgear and the user's eye position or movement. (Appeal Br. 22–23). We disagree with Appellant. Nasser explicitly discloses adjusting the user’s “head position to look at a media site through the one-eye visor [(analogous to headgear)] to target the media site and to perform the distance measurement using the rangefinder 520. The angles used to compute the height of the media site can be derived from the orientation of the user’s head. (emphasis added)” (FF. 4). We thus find that Nasser meets the Appeal 2020-004861 Application 15/177,699 10 limitation of “utilizing data received from a user head-mountable eye- tracking device coupled to the processor, a location of a user in the at least three-dimensional space and orientation of an eyeball of the user.” Appellant argues concerning Nasser, “[h]owever, a closer review of the cited text appears limited to teaching only a camera location.” (Appeal Br. 23–24). We disagree with Appellant. As discussed above, Nasser discloses calibrating the orientation of the head through looking through the one-eye visor to that of the user’s eye. The device in the headpiece embodiment of Nasser thus projects the three-dimensional field shown in Figure 6C onto the location of the user’s eye. Claims 3–8 Dependent claim 3 recites, “the head-mountable eye-tracking device comprises earphones.” The Examiner cites to Manabe to meet this limitation citing to the Abstract on page 1073, which discloses a headphone- type gaze detector. (See FF. 2, FF. 5) Appellant argues: The rejection only cites a headphone device within Manabe having 14 electrodes located on an external headphone cushion (see below properties of headphone EOG). However, [an] earphone is located inside the ear canal (not outside) and would therefore have many different device parameters such as different sizing, power considerations, sensors and communication standards. (Appeal Br. 24–25) We disagree with Appellant. Appellant’s Specification states that Appeal 2020-004861 Application 15/177,699 11 “[n]ote that the eye-tracking device 302 can be implemented in the context of different embodiments, such as earphones, headphones, ear buds, or other similar, wearable devices.” Specification 15:4–6. Thus, we find based on Appellant’s Specification that the disclosed headset of Manabe is the obvious variant of the claimed earphones. We thus sustain the rejection of claims 1, 3–8, under 35 U.S.C. § 103. We also affirm the rejections of dependent claims 2, 9–17, and 19 since Appellant has not challenged such with any reasonable specificity (see In re Nielson, 816 F.2d 1567, 1572 (Fed. Cir. 1987)). CONCLUSIONS OF LAW We conclude the Examiner did err in rejecting claims 1–20 under 35 U.S.C. § 112(a) as failing to comply with the enablement requirement. We conclude the Examiner did not err in rejecting claims 1–3, 5–12, and 18–20 under 35 U.S.C. § 103 as being unpatentable over Nasser, Manabe, and Marci. We conclude the Examiner did not err in rejecting claim 4 under 35 U.S.C. § 103 as being unpatentable over Nasser, Manabe, Marci, and Lee. We conclude the Examiner did not err in rejecting claims 13–17 under 35 U.S.C. § 103 as being unpatentable over Nasser, Manabe, Marci, and Wysocki. DECISION The decision of the Examiner to reject claims 1–20 is affirmed. Appeal 2020-004861 Application 15/177,699 12 Claims Rejected 35 U.S.C. § Basis Affirmed Reversed 1–20 112(a) Enablement 1–20 1–3, 5–12, 18–20 103 Nasser, Manabe, Marci 1–3, 5–12, 18–20 4 103 Nasser, Manabe, Marci, Lee 4 13–17 103 Nasser, Manabe, Marci, Wysocki 13–17 Overall Outcome 1–20 No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R. § 1.136(a)(1)(iv). AFFIRMED.