Ex Parte Angell et al

Patent Trial and Appeal Board

Sep 29, 2014

11743982 (P.T.A.B. Sep. 29, 2014)

UNITED STATES PATENT AND TRADEMARK OFFICE
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BEFORE THE PATENT TRIAL AND APPEAL BOARD
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Ex parte ROBERT LEE ANGELL and JAMES R. KRAEMER
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Appeal 2012-002870
Application 11/743,9821
Technology Center 3600
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Before: ANTON W. FETTING, MICHAEL C. ASTORINO, and
NINA L. MEDLOCK, Administrative Patent Judges.

ASTORINO, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF CASE
The Appellants seek our review under 35 U.S.C. § 134 from the
Examiner’s final rejection of claims 1–8, 10–21, and 23–35. We have
jurisdiction under 35 U.S.C. § 6(b).
We REVERSE.

Claimed Subject Matter
Claims 1, 18, and 26 are the independent claims on appeal. Claim 1,
reproduced below, is illustrative of the subject matter on appeal.

1 According to the Appellants, “[t]he real party in interest in this appeal is
International Business Machines Corporation of Armonk, New York, the
assignee of this application.” App. Br. 2.
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1. A computer implemented method for generating customized
marketing messages for a customer using biometric data, the
computer implemented method comprising:
receiving, by a processor, data from a set of biometric
devices associated with a retail facility to form the biometric
data, wherein the biometric data is associated with a customer;
processing, by the processor, the biometric data to form
dynamic data;
analyzing, by the processor, the dynamic data using a
data model to identify personalized marketing message criteria
for the customer;
generating, by the processor, a customized marketing
message for the customer using the personalized marketing
message criteria;
detecting a change in a biometric reading associated with
the customer that exceeds a threshold change; and
responsive to a determination that the customer was
viewing an item or a marketing message when the change in the
biometric reading occurred, associating the change in the
biometric reading with the item or the marketing message to
form the biometric data.

Rejections
Claims 1–7, 12, 13, 16–21, 24, 26–28, 31, 33, and 35 are rejected
under 35 U.S.C. § 103(a) as unpatentable over Huang (US 2008/0004951
A1, pub. Jan. 3, 2008) and Gonzalez (US 2010/0023372 A1, pub. Jan. 28,
2010).2

2 Although claims 3, 5, 17, 20, 21, and 28 were not listed in the ground of
rejection at page 4 of the Answer, the rejection of claims 3, 5, 17, 20, 21,
and 28 was explained as part of this ground of rejection at pages 7–8 of the
Answer. As such, the failure to include these claims as part of the ground of
rejection is understood to be a minor oversight by the Examiner.
Additionally, it is notable that although the Appellants do not include
claims 3, 5, 17, 20, 21, and 28 as part of the ground of rejection (App. Br. 9),
the Appellants acknowledge that these claims have been rejected by
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Claims 8, 10, 11, 14, 15, 23, 25, 29, 30, 32, and 34 are rejected under
35 U.S.C. § 103(a) as unpatentable over Huang, Gonzalez, and Luff (US
2008/0270172 A1, pub. Oct. 30, 2008).

ANALYSIS
Obviousness based upon Huang and Gonzalez
The Appellants contend the cited sections of Huang do not disclose
“detecting a change in a biometric reading associated with the customer that
exceeds a threshold change,” as required by independent claims 1, 18, and
26. App. Br. 12–16, Reply Br. 2–4. The Appellants assert that Huang
discloses sensors that “monitor biometric parameters of a customer,” but
these sensors do not detect changes. App. Br. 13–14. The Appellants’
argument is persuasive.
The Examiner relies on paragraphs 41, 63, and 77 of Huang as
disclosing the above-mentioned requirement of independent claims 1, 18,
and 26. Ans. 5, 10, 12–13. Huang, paragraph 41, discloses sensors, such as
“image processing, audio processing, light sensing, velocity sensing,
direction sensing, proximity sensing, face recognition, pose recognition,
transaction recognition, and biometric sensing” that are used to select an
advertisement. Para. 41. Huang further discloses using thermal imaging and
thermocouples to detect customer skin temperature. Para. 63. Huang also
discloses using facial recognition systems, where “changes in the customer
face are monitor[ed] and recognized” while viewing an advertisement, then

explaining that claims 1-8, 10-21, and 23–35 are rejected and are appealed
(App. Br. 4).
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adjusting pricing “based on the facial expressions of the customer.”
Para. 77.
However, the Examiner does not adequately explain how these
paragraphs support that Huang discloses detecting a change in a biometric
reading associated with the customer that exceeds a threshold change, as
required by the independent claims. The Examiner maintains, “[a]lthough
Huang does not explicitly disclose a change in temperature or a change in
biometric reading, Huang’s . . . [paragraph 77] infers that biometric sensors
in a retail environment may be utilized to learn as much information about a
potential customer” and that “[a] sensor’s utility is to read and detect any
changes in a person’s physiology.” Ans. 12. Notably, the Examiner does
not articulate whether a facial expression is a “biometric reading” and
whether more than one facial expression is used to detect changes, or
whether another method is used that is based on a single facial expression
being compared to a standard image or pattern.
The Examiner also does not adequately explain how detecting a
change in a biometric reading associated with the customer that exceeds a
threshold change, as required by the independent claims, is evidenced by
Huang or otherwise would have been obvious to one of ordinary skill in the
art. See Ans. 15–16. The Examiner asserts that the term “change threshold”
is very broad. Ans. 15. The Examiner speculates that, in inferring whether a
customer prefers one advertisement over another, Huang’s “system would
determine three temperature reading[s], the baseline reading, the temperature
based on the first ad[,] and the temperature based on the second ad.”
Ans. 16. However, paragraph 41 of Huang merely discloses selecting one
advertisement, not comparing advertisements. For example, selecting an
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advertisement “based on size, height and weight it is determined that an
individual’s gender is male, and the display is close to both ladies apparel as
well as cameras . . . .” Para. 41. Paragraph 63 uses a single temperature
reading “to infer that the customer may prefer to see one type of ad over
another,” without disclosing that two ads are compared, or that a third,
baseline temperature reading is utilized. Para. 63. Thus, we do not agree
that Huang discloses a threshold change, as claimed.
The Examiner also asserts that “a change in the biometric sensor must
be determined . . . .” Ans. 13. However, Huang discloses that
advertisements can be selected based on single measurements of size, height,
and weight (para. 41) and temperature (para. 63), and pricing adjustments
can be made by categorizing a single facial expression as “negative”
(para. 77). Thus, Huang does not necessarily disclose determining a change
in a biometric reading in paragraphs 41, 63, and 77. For this reason, the
Examiner has failed to establish a prima facie case of obviousness.
We reverse the rejection of claims 1, 18, and 26, as well as dependent
claims 2–7, 12, 13, 16, 17, 19–21, 24, 27, 28, 31, 33, and 35 that are also
rejected under 35 U.S.C. § 103(a) as unpatentable over Huang and Gonzalez.

Obviousness based upon Huang, Gonzalez, and Luff
The remaining rejection based on Huang and Gonzalez in
combination with Luff fails to remedy the deficiency in the Examiner’s
rejection as discussed above. See Ans. 8–9. As such, we do not sustain the
rejection of claims 8, 10, 11, 14, 15, 23, 25, 29, 30, 32, and under 35 U.S.C.
§ 103(a) as unpatentable over Huang, Gonzalez, and Luff.
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DECISION
We reverse the rejections under 35 U.S.C. § 103(a) of claims 1–8, 10–
21, and 23–35.

REVERSED

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