Wild Blue Technologies, Inc.

Patent Trials and Appeals Board

Dec 23, 2020

2020003499 (P.T.A.B. Dec. 23, 2020)

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.
15/154,961 05/14/2016 Steven E. McLean 13233 9270
22922 7590 12/23/2020
REINHART BOERNER VAN DEUREN S.C.
ATTN: TRAVIS MCDONNELL, PARALEGAL
1000 NORTH WATER STREET
SUITE 2100
MILWAUKEE, WI 53202
EXAMINER
WALTON, CHESIREE A
ART UNIT PAPER NUMBER
3624
NOTIFICATION DATE DELIVERY MODE
12/23/2020 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):
IPAdmin@reinhartlaw.com
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte STEVEN E. McLEAN, SKYLER SWIFT LAUREN,
MICHAEL J. HILL, and MICHAEL J. KOVAC
____________

Appeal 2020-003499
Application 15/154,961
Technology Center 3600
____________

Before BIBHU R. MOHANTY, JAMES P. CALVE, and BRADLEY B.
BAYAT, Administrative Patent Judges.

MOHANTY, Administrative Patent Judge.

DECISION ON APPEAL
STATEMENT OF THE CASE
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s decision to reject claims 1–20. We have jurisdiction under
35 U.S.C. § 6(b).

SUMMARY OF THE DECISION
We REVERSE.

1 We use the word Appellant to refer to “applicant” as defined in 37 C.F.R.
§ 1.42(a). Appellant identifies the real party in interest as Wild Blue
Technologies, Inc. (Appeal Br. 2).
Appeal 2020-003499
Application 15/154,961

2

CLAIMED SUBJECT MATTER
The Appellant’s claimed invention relates to an apparatus and method
for dispensing a product or sample in response to the detection of a selected
facial expression (Spec., para. 2). Claim 1, reproduced below, is
representative of the subject matter on appeal.

1. An apparatus for dispensing a product or sample in response to
the detection of a selected facial expression, comprising:
a camera for capturing an image of a customer's face located in
front of the camera;
a display unit for displaying the image of the customer's face
captured by the camera, the display unit also displaying information to
prompt the customer in the use of the apparatus;
a user input device for allowing the customer to manually
respond to information prompting the customer;
a facial characteristic analysis element for analyzing images of
customers' faces;
a facial memory storage element for storing facial
characteristics of customers who have had their image captured over a
prior predetermined period of time;
a facial analysis element for detecting a selected facial
expression in the image of the customer's face captured by the camera;
an identification element for determining whether the
customer's facial characteristics are the same as the facial
characteristics of one of the customers who have had their image
captured over the prior predetermined period of time;
a dispensing unit to dispense a product or sample upon receipt
of a product dispending signal; and
a processing unit for generating a product dispending signal
only if: 1. The identification element determines that the customer's
facial characteristics are different from the facial characteristics of all
of the customers who have had their image captured over the
prior predetermined period of time; and 2. if the facial analysis unit
detects the selected facial expression in the image of the customer's
face captured by the camera.

Appeal 2020-003499
Application 15/154,961

3

THE REJECTIONS
The following rejections are before us for review:
1. Claims 1–6, 10–15, 19, and 20 are rejected under 35 U.S.C.
§ 103 as unpatentable over Li (US 2014/0156398 A1; published June 5,
2014), Bowles (US 2016/0275518 A1; published Sept. 22, 2016), and
Morris (US 2015/0348162 A1; published Dec. 3, 2015).
2. Claims 7, 9, 16, and 18 are rejected under 35 U.S.C. § 103 as
unpatentable over Li, Bowles, Morris, and Walker (US 7,885,726 B2; issued
Feb. 8, 2011).
3. Claims 8 and 17 are rejected under 35 U.S.C. § 103 as being
unpatentable over Li, Bowles, Morris, and Davis (US 7,756,604 B1; issued
July 13, 2010).

FINDINGS OF FACT
We have determined that the findings of fact in the Analysis section
below are supported at least by a preponderance of the evidence.2

ANALYSIS
The Appellant argues that the rejection of claim 1 is improper because
the prior art fails to disclose the claim limitation for “a facial memory
storage element for storing facial characteristics of customers who have had
their image captured over a prior predetermined period of time” (Appeal Br.
7, 8; Reply Br. 7, 8). The Appellant also argues that the rejection lacks

2 See Ethicon, Inc. v. Quigg, 849 F.2d 1422, 1427 (Fed. Cir. 1988)
(explaining the general evidentiary standard for proceedings before the
Patent and Trademark Office).
Appeal 2020-003499
Application 15/154,961

4

rational underpinnings to support a conclusion of obviousness (Appeal Br.
8–11; Reply Br. 8–10).
In contrast, the Examiner has determined that the cited claim
limitation is disclosed by Li at para. 30, and Bowles at paras. 58, 79, and 104
(Final Act. 2–22; Ans. 3–8). The Examiner has also determined that the
cited combination of references would have been obvious (Final Act. 19, 22,
Ans. 5-8).
We agree with the Appellant. Here, even taking the cited prior to
disclose the argued claim limitation, we determine that the rejection of
record fails to provide a rationale for the combination of references that
would have been obvious.
Here, Li at para. 30 has disclosed the use of a facial expression
detection module that uses facial patterns associated with consumer profiles
stored in a database. Bowles at para. 58 does disclose that the comparison of
photographs with previous photographs under similar conditions can provide
a better similarity score. Morris has disclosed a method for providing
purchase suggestions to consumers based on factors including their
emotional or physiological state (Abstract). Morris at para. 77 also discloses
that the device may be a vending machine that has a camera to acquire
images of customers face before presenting items for purchase. However,
claim 1 also requires:
a processing unit for generating a product dispending
signal only if: 1. The identification element determines that the
customer's facial characteristics are different from the facial
characteristics of all of the customers who have had their image
captured over the prior predetermined period of time; and 2. if
the facial analysis unit detects the selected facial expression in
the image of the customer's face captured by the camera.

Appeal 2020-003499
Application 15/154,961

5

(Claim 1). Here, in combination with the other cited claim elements, the
above cited limitation requires that product is only dispensed if the cited two
claimed conditions are met.
In KSR Int'l Co. v. Teleflex Inc., 550 U.S. 398 (2007) the Supreme
Court at 418 noted that in an obviousness analysis “[R]ejections on
obviousness grounds cannot be sustained by mere conclusory statements;
instead, there must be some articulated reasoning with some rational
underpinning to support the legal conclusion of obviousness”. Here, we
determine that the rejection of record fails to provide articulated reasoning
with rational underpinnings to select the cited features of Li, Bowles, and
Morris to meet the claim limitations without impermissible hindsight and we
determine that the rejection would not have been obvious. In particular, in
combination with the other claimed elements, the last paragraph of the claim
sets forth specific conditions for the dispensing of the product and the
rejection of record fails to provide articulated reasoning with rational
underpinnings for such a modification in the prior art without impermissible
hindsight. For this reason, the rejection of claim 1 and its dependent claims
is not sustained. The remaining independent claims 10 and 19 contain a
similar limitation and the rejection of these claims and their dependent
claims is not sustained for the same reasons given above.

CONCLUSIONS OF LAW
We conclude that Appellant has shown that the Examiner erred in
rejecting claims 1–6, 10–15, 19, and 20 under 35 U.S.C. § 103 as
unpatentable over Li, Bowles, and Morris.
Appeal 2020-003499
Application 15/154,961

6

We conclude that Appellant has shown that the Examiner erred in
rejecting claims 7, 9, 16, and 18 under 35 U.S.C. § 103 as unpatentable over
Li, Bowles, Morris, and Walker.
We conclude that Appellant has shown that the Examiner erred in
rejecting claims 8 and 17 under 35 U.S.C. § 103 as unpatentable over Li,
Bowles, Morris, and Davis.
DECISION SUMMARY

Claims
Rejected
35 U.S.C.
§
Reference(s)/Basis Affirmed Reversed
1–6, 10–15,
19, 20
103 Li, Bowles, Morris 1–6, 10–15,
19, 20
7, 9, 16, 18 103 Li, Bowles,
Morris, Walker
7, 9, 16, 18
8, 17 103 Li, Bowles,
Morris, Davis
8, 17
Overall
Outcome
1–20

REVERSED