Intel Corporation

Patent Trials and Appeals Board

May 28, 2021

2020006555 (P.T.A.B. May. 28, 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.
15/396,243 12/30/2016 Guillermo Perez P108869 3545
88032 7590 05/28/2021
Jordan IP Law, LLC
12501 Prosperity Drive, Suite 401
Silver Spring, MD 20904
EXAMINER
BLAISE, MALINA D
ART UNIT PAPER NUMBER
3715
NOTIFICATION DATE DELIVERY MODE
05/28/2021 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):
admin@jordaniplaw.com
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PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________________

Ex parte GUILLERMO PEREZ and
ISRAEL PEREZ TUDELA
____________________

Appeal 2020-006555
Application 15/396,243
Technology Center 3700
____________________

Before: STEFAN STAICOVICI, JOSIAH C. COCKS, and
JEREMY M. PLENZLER, Administrative Patent Judges.

STAICOVICI, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE
Appellant1 appeals under 35 U.S.C. § 134(a) from the Examiner’s
decision in the Final Action (dated Nov. 29, 2019, hereinafter “Final Act.”)
rejecting claims 1–8, 10–20, and 22–28.2 We have jurisdiction under 35
U.S.C. § 6(b).

1 We use the word “Appellant” to refer to “applicant” as defined in 37
C.F.R. § 1.42. Intel Corporation is identified as the real party in interest in
Appellant’s Appeal Brief (filed Apr. 27, 2020, hereinafter “Appeal Br.”).
Appeal Br. 3.
2 Claims 9 and 21 are canceled. Appeal Br. 6.
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SUMMARY OF DECISION
We REVERSE.

CLAIMED SUBJECT MATTER
The invention relates to a workout system and method “using
emotional maps and dialog systems to improve workout experiences.”
Spec., para. 1.
Claims 1, 5, 13, and 17 are independent. Claim 1, reproduced below,
is illustrative of the claimed subject matter:
1. A system comprising:
a housing having a wearable form factor;
a user interface device; and
an emotional workout apparatus including:
an emotion monitor to determine an emotional state of a
user;
a route selector communicatively coupled to the emotion
monitor, the route selector to identify a workout route based on
the emotional state of the user, wherein the workout route is to
be selected from an emotional map of pre-classified potential
routes including a relaxing route, a regular workout route and a
route that was not previously taken; and
a notifier communicatively coupled to the route selector,
the notifier to output the workout route via the user interface
device.

REJECTIONS
The following rejections are before us for review:
I. Claims 1–8, 10–20, and 22–26 are rejected under 35 U.S.C.
§ 103 as unpatentable over Yeh3 and French.4

3 Yeh et al., US 2015/0081210 Al, published Mar. 19, 2015.
4 French et al., US 2017/0030726 Al, published Feb. 2, 2017.
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II. Claims 27 and 28 are rejected under 35 U.S.C. § 103 as
unpatentable over Yeh, French, and Hresko.5

ANALYSIS
Rejection I
Each of independent claims 1 and 5 is drawn to an apparatus that
requires, inter alia, “an emotion monitor to determine an emotional state of a
user” and a “route selector to identify a workout route based on the
emotional state of the user.” Appeal Br. 16, 17 (Claims App.). Independent
claim 13, which is a method claim, is similar in that it requires “determining,
via an emotion monitor, an emotional state of a user” and “identifying, via a
route selector . . . a workout route based on the emotional state of the user.”
Id. at 18. Finally, independent claim 17, which is drawn to a non-transitory
computer readable storage medium, includes instructions to “determine an
emotional state of a user” and “identify a workout route based on the
emotional state of the user.” Id. at 19.
The Examiner finds Yeh discloses “an emotion monitor” having
instructions “to determine an emotional state of a user” and a “route
selector” to select a route “based on the emotional state of the user.” See
Final Act. 3, 6, 8, 9 (citing Yeh, para. 84). The Examiner further finds that
French discloses a “route selector” that identifies “a route based on the
emotional state of the user, wherein the route is to be selected from an
emotional map of pre-classified potential routes.” Id. at 4, 7, 8, 11 (citing
French, paras. 9–12).

5 Hresko et al., US 2017/0095674 Al, published Apr. 6, 2017.

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Appellant argues that “Yeh does not disclose an emotion monitor to
determine an emotional state of a user” because Yeh’s system employs “the
user’s biometric information in order to determine the user’s ability to
complete a route on time.” Appeal Br. 12 (emphasis omitted). According to
Appellant, “Yeh fails to disclose determining an emotional state of the user
and identifying a workout route based on the emotional state of the user.”
Id. Appellant further argues “that French has similar deficiencies as Yeh”
because “French clearly discloses determining a route based on the emotions
of other people along the route . . . and not based on the emotion of the
user.” Id. at 13 (emphasis omitted).
In response, the Examiner notes that Appellant’s Specification
describes “determining the emotional state of the user . . . [by] inferring
emotions from one or more sensor information which includes blood
pressure signals, heart rate signals, etc.” Examiner’s Answer (dated June 30,
2020, hereinafter “Ans.”) 15 (citing Spec., para. 17). The Examiner further
notes that, like Appellant, Yeh determines a user’s physical output by
employing “emotion recognition using images from a camera, or biometric
data of a user.” Id. (citing Yeh, para. 82, 84–88) (emphasis added). Thus,
according to the Examiner, because Yeh’s system “select[s] a route based on
[the] physical output of the user which may include emotion recognition
using images from a camera (i.e., emotion monitor) and biometric data,”
Yeh discloses selecting a route “based on the emotional state of the user.”
Id. (citing Yeh, paras. 58, 59, 91, 93, 100).
Claim language should be read in light of the Specification, as it
would be interpreted by one of ordinary skill in the art. In re Suitco Surface,
Inc., 603 F.3d 1255, 1260 (Fed. Cir. 2010). In this case, an ordinary and
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customary meaning of the term “emotion” is “[a] mental state that arises
spontaneously rather than through conscious effort and is often accompanied
by physiological changes; a feeling: the emotions of joy, sorrow, and
anger.”6 Such a construction is consistent with Appellant’s Specification,
which describes an “emotional state” of a user as being “stressed, happy,
sad, bored, etc.” See Spec. para. 17 (“the system determines an emotional
state of a user (e.g., stressed, happy, sad, bored, etc.).”). Accordingly, a
person of ordinary skill in the art, in light of Appellant’s Specification,
would understand that determining an emotional state of a user, as called for
by each of independent claims 1, 5, 13, and 17, means determining a mental
state, that is, a feeling, of the user.
In contrast, Yeh’s “emotion recognition using images from a camera”
determines a “user’s physical output.” See Yeh, para. 84 (“other types of
information may be used to determine a user’s physical output, such as e.g.
emotion recognition using images from a camera.”) (emphasis added). We
appreciate that, like Appellant, Yeh employs biometric sensors (see Yeh,
para. 43); however, the data from Yeh’s biometric sensors is ultimately used
to determine a user’s physical state, not to determine an “emotional state,”
which, as discussed supra, constitutes a mental state. Moreover, even
though Yeh discloses dynamically changing a user’s route, identifying an
alternate route is based on the user’s physical state, and not on the user’s
“emotional state.” See Yeh, paras. 59, 60 (if based on the user’s biometric
data the system determines that the user’s body temperature, which is a
physical state, is rising beyond a preset value, the system determines that the

6 The Free Dictionary, https://www.thefreedictionary.com/emotion (last
visited May 14, 2021).
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original route cannot be completed and identifies an alternate route). As
such, we agree with Appellant that “Yeh fails to disclose determining an
emotional state of the user and identifying a workout route based on the
emotional state of the user.” Appeal Br. 12.
With respect to the disclosure of French, Appellant is correct that
French discloses determining an alternate route “based on the emotions of
other people along the route . . . and not based on the emotion of the user.”
Appeal Br. 13 (emphasis omitted). In particular, French explicitly discloses
that identifying an alternate route is based on “providing one or more
indications as to preferred emotions of persons along the route, at the
destination, or both.” French, para. 30 (emphasis added). Thus, just because
French discloses “selecti[on] of a route based on human emotion,” as the
Examiner contends, this does not mean that French discloses identifying a
workout route based on the emotional state of the user, as called for by
independent claims 1, 5, 13, and 17. See Final Act. 4 (“to implement the
selection of a route based on human emotion as disclosed by French”); Ans.
16–17. Moreover, as the Examiner employs French to disclose a “route
selector” that identifies “a route based on the emotional state of the user,”
French also does not remedy the deficiency of Yeh discussed supra. See
Final Act. 4, 7, 8, 11 (citing French, paras. 9–12).
Finally, we do not agree with the Examiner’s position that the use of
the term “if” in claim 17 constitutes “optional language,” and, thus, “the
claim limitations based upon the ‘if’ condition are optional claim
limitations.” Final Act. 10. The term “if” appears only in the preamble of
claim 17, which states “[a]t least one non-transitory computer readable
storage medium comprising a set of instructions which, if executed by a
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computing device, cause the computing device to.” Appeal Br. 19 (Claims
App.) (emphasis added). The preamble of a claim does not limit the scope
of a claim when it simply states a purpose or intended use of the invention.
Loctite Corp. v. Ultraseal Ltd., 781 F.2d 861, 868 (Fed. Cir. 1985). Here,
the preamble merely states the purpose of the claimed “[a]t least one non-
transitory computer readable storage medium comprising a set of
instructions,” namely, to “execute[] by a computing device” the set of
instructions.
Moreover, even if the preamble were limiting, to construe the term
“if” as optional, and, thus, read claim 17 as not requiring the set of
instructions, would be unreasonable in light of Appellant’s Specification and
a skilled artisan’s understanding that a non-transitory computer readable
storage medium requires a computing device in order to function. To that
end, construing the term “if” as establishing optional conditions would
effectively, and unreasonably, read out entirely the requirements of the
claim. See Ex parte Schulhauser, Appeal 2013-007847, 2016 WL 6277792,
at *7 (PTAB Apr. 28, 2016) (Precedential) (“The broadest reasonable
interpretation of a system claim having structure that performs a function,
which only needs to occur if a condition precedent is met, still requires
structure for performing the function should the condition occur. This
interpretation of the system claim differs from the method claim because the
structure (i.e., a processor programmed to perform an algorithm for carrying
out the recited function should the recited condition be met) is present in the
system regardless of whether the condition is met and the function is
actually performed.”).

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Accordingly, for the foregoing reasons, we do not sustain the rejection
under 35 U.S.C. § 103 of independent claims 1, 5, 13, and 17, and their
respective dependent claims 2–4, 6–8, 10–12, 14–16, 18–20, and 22–26 as
unpatentable over Yeh and French.

Rejections II
The Examiner’s use of the Hresko disclosure does not remedy the
deficiency of the Yeh and French combination discussed supra. See Final
Act. 12–13. Therefore, for the same reasons discussed above, we also do not
sustain the rejection under 35 U.S.C. § 103 of claims 27 and 28 as
unpatentable over Yeh, French, and Hresko.

CONCLUSION

Claim(s)
Rejected
35
U.S.C. §
Reference(s)/Basis Affirmed Reversed
1–8, 10–20,
22–26
103 Yeh, French 1–8, 10–20,
22–26
27, 28 103 Yeh, French,
Hresko
27, 28
Overall
Outcome
1–8, 10–20,
22–28

REVERSED