Ex Parte AshbrookDownload PDFPatent Trials and Appeals BoardMar 27, 201913630898 - (D) (P.T.A.B. Mar. 27, 2019) Copy Citation UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 13/630,898 09/28/2012 10949 7590 03/29/2019 Nokia Corporation and Alston & Bird LLP c/o Alston & Bird LLP Bank of America Plaza, 101 South Tryon Street Suite 4000 Charlotte, NC 28280-4000 FIRST NAMED INVENTOR Daniel L. Ashbrook 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. 042933/425066 6911 EXAMINER PETERS, LISA E ART UNIT PAPER NUMBER 2862 NOTIFICATION DATE DELIVERY MODE 03/29/2019 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): usptomail@alston.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte DANIELL. ASHBROOK Appeal 2018-003812 Application 13/630,898 Technology Center 2800 Before ADRIENE LEPIANE HANLON, JENNIFER R. GUPTA, and SHELDON M. McGEE, Administrative Patent Judges. GUPTA, Administrative Patent Judge. DECISION ON APPEAL 1 Appellant2 appeals under 35 U.S.C. § 134(a) from the Examiner's final decision rejecting claims 1-20 and 24--29. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM-IN-PART. 1 In this Decision, we refer to the Specification filed September 28, 2012 ("Spec."), the Final Office Action dated April 14, 2017 ("Final Act."), the Appeal Brief filed November 27, 2017 ("Appeal Br."), the Examiner's Answer dated December 26, 2017 ("Ans."), and the Reply Brief filed February 26, 2018 ("Reply Br."). 2 Appellant is the Applicant, Nokia Corporation, listed in the Application Data Sheet filed September 28, 2012. However, according to the USPTO's assignment records, as of January 11, 2017, the assignee of the present application is Nokia Technologies Oy, which is identified as the real party in interest. Appeal Br. 2. Appeal 2018-003812 Application 13/630,898 The subject matter on appeal relates to a method (independent claim 1 ), an apparatus (independent claim 8), and a computer program (independent claim 15) for determining the emotional response of individuals within a group. Spec. ,r,r 1, 4. Independent claim 1, reproduced below from the Claims Appendix of the Appeal Brief with emphasis to highlight key disputed limitations, is illustrative of the claims on appeal. 1. A method comprising: receiving information identifying an emotional response and an attentional focus of each of a plurality of individuals; determining a first relationship between a first threshold and a number of the individuals with an attentional focus 3 having a predefined association with a location; determining that the emotional response of an individual satisfies a predefined condition in an instance in which the emotional response is within a range that includes a plurality of related emotional states; determining, with a processor, a second relationship between a second threshold and a number of individuals with an emotional response that satisfies the predefined condition4; and causing an action to be performed based upon both the first and second relationships, wherein causing the action to be performed comprises capturing an image of one or more of the individuals following determination of the first and second relationships and only in an instance in which the first and 3 Appellant's Specification discloses that "[t]he attentional focus of an individual is the object, location or the like upon which the individual is focusing their attention." Spec. ,r 24. 4 Appellant's Specification discloses that "the predefined condition may be the emotional state of being happy with individuals having an emotional response of smiling or laughing being considered to satisfy the predefined condition, while users who have an emotional response of grimacing fail to satisfy the predefined condition. Spec. ,r 53. 2 Appeal 2018-003812 Application 13/630,898 second relationships that have been determined indicate that the image is to be captured. Appeal Br. 14 (Claims App.). As Appellant acknowledges, independent claim 8 and independent claim 15, which are directed to an apparatus and a computer program, respectively, include similar recitations to the disputed limitations highlighted in independent claim 1 above. See Appeal Br. 6. DISCUSSION The Examiner maintains the rejection of claims 1--4, 6-11, 13-18, 205 and 27-29 under pre-AIA 35 U.S.C. § I03(a) over Staudacher et al. (US 2012/0105662 Al, published May 3, 2012) ("Staudacher") in view of Marci et al. (US 2010/0004977 Al, published January 7, 2010) ("Marci"). Ans. 2. The Examiner also maintains the rejection of claims 5, 12, 19, and 24--26 under pre-AIA 35 U.S.C. § I03(a) over Staudacher, Marci, and Norfolk et al. (US 2008/0126179 Al, published May 29, 2008) ("Norfolk"). Id. Appellant presents separate patentability arguments regarding claims 1 and 24--26. See Appeal Br. 5-13. We select claim 1 as representative of claims 2-20, and 27-29, and will address the separate arguments presented for claims 24--26 below. After review of the cited evidence in light of the Appellant's and the Examiner's opposing positions, we determine that the Appellant has not 5 Claim 20 is not listed in the statement of rejection in the Final Action (Final Act. 3); however, claim 20 is included in the body of the rejection (id. at 7). Thus, we consider the omission of claim 20 in the statement of rejection as a typographical error, and refer to the rejection herein as including claim 20. 3 Appeal 2018-003812 Application 13/630,898 identified reversible error in the Examiner's rejections except where otherwise explained below. Thus, where we affirm the Examiner's rejections, we do so for the reasons expressed in the Final Office Action, the Answer, and below. Claims 1-20 and 27-29 Appellant argues that Staudacher fails to teach or suggest: (i) "determining a first relationship between a first threshold and a number of individuals with an attentional focus having a predefined association with a location," (ii) "determining ... a second relationship between a second threshold and a number of individuals with an emotional response that satisfies [a] predefined condition," and (iii) "causing an action to be performed based upon the first and second relationships ... by capturing an image of one or more of the individuals following determination of the first and second relationships and only in an instance in which the first and second relationships have been determined to indicate that the image is to be captured," as recited in claim 1. Id. at 7-8, 9. Appellant argues that in contrast to claim 1, Staudacher combines a number of different pose metrics into a single pose value and then compares that single pose value with a threshold. Id. at 8. Thus, Staudacher describes a more aggregated approach in which a composite pose value representative of the plurality of individual pose metrics is compared with a threshold as opposed to the separate comparisons of the plurality of individual pose metrics with respective thresholds. Id. According to Appellant, these two approaches, namely, the approach involving a composite pose value, and the more individualized determination set forth by independent Claim 1 can provide different results. Id. 4 Appeal 2018-003812 Application 13/630,898 Appellant's arguments are not persuasive of reversible error. Staudacher teaches a camera system (50) that includes a pose analyzer (56) that analyzes image data according to pose metrics (16) associated with one or more human subjects. Staudacher ,r 18. The pose analyzer (56) includes a pose metric calculator ( 18) that generates the pose metric signal MET to have a value that is computed based on the pose metrics ( 16) and associated metric weights (58). Id. ,r 19. Some examples of pose metrics (16) include detecting the number of subjects that are smiling, facing the camera, or have their eyes open. Id. ,r 9, 22. As the Examiner finds, Staudacher teaches the metric weights (58) can be programmable weights that determine "separate and individual contributions of the different pose metrics 16." Ans. 3 ( citing Staudacher ,r 20). The Examiner also finds that Staudacher teaches that "[ w ]hen a scene contains multiple subjects, the pose analyzer can generate the value of the pose metric signal MET according to a percentage of the multiple subjects that satisfy each of the pose metrics 16"----(i.e., individually determining a relationship between a threshold and a number of individuals satisfying one or more pose metrics ( e.g., facing the camera (attentional focus) and/or smiling (emotional response)). Id. at 3--4 (citing Staudacher ,r 22). Based on Staudacher's teachings, we are not persuaded of reversible error in the Examiner's reasonable finding that one of ordinary skill in the art would understand that Staudacher teaches "determining a first relationship between a first threshold and a number of individuals with an attentional focus having a predefined association with a location" and also "determining ... a second relationship between a second threshold and a number of individuals with an emotional response that satisfies [a] predefined condition." We note that although Staudacher does not use the 5 Appeal 2018-003812 Application 13/630,898 same language as the claims ("threshold"), there is no requirement that the prior art contain a description of the subject matter of the appealed claim in ipsissimis verbis. See In re Gleave, 560 F.3d 1331, 1334 (Fed. Cir. 2009) (a reference need not satisfy an ipsissimis verbis test). In addition, as the Examiner finds, Staudacher teaches capturing an image based on the pose metric signal MET, which as described above is generated based on the pose metrics (16). Ans. 3 ( citing Staudacher ,r 23); see also Final Act. 4 ( citing Staudacher ,r 25) ("the camera system 50 can capture the photograph automatically upon the pose metric signal MET exceeding the predetermined threshold"). Based on those teachings, we are not persuaded of reversible error in the Examiner's reasonable finding that Staudacher teaches "causing an action to be performed based upon both the first and second relationships, wherein causing the action to be performed comprises capturing an image of one or more of the individuals following determination of the first and second relationships and only in an instance in which the first and second relationships that have been determined indicate that the image is to be captured." We also note that as the Examiner explains, Appellant's claim language does not exclude "additional processing ... to derive a single, combined pose metric signal used to determine when to capture the image." Ans. 4. Appellant argues that Marci fails to teach or suggest "determining that the emotional response of an individual satisfies a predefined condition in an instance in which the emotional response is within a range that includes a plurality of related emotional states." Appeal Br. 10 ( emphasis added). Appellant's argument is not persuasive of reversible error. As the Examiner finds, Marci teaches a method of exposing an audience to a 6 Appeal 2018-003812 Application 13/630,898 presentation ( a sensory stimulus) and evaluating the audience's experience by measuring the physically, biologically, physiologically, and behaviorally based responses ( collectively referred to as "biometric responses," which include facial expressions (Marci ,r,r 14, 31)) of the individual members of the audience to the presentation, and determining a measure of the level and pattern of intensity of the responses. Ans. 7 ( citing Marci ,r 5); Final Act. 5 ( citing Marci ,r 51 ("The measure of intensity can include measuring the change, from a base level, of a biologically based response to the stimulus.")); see also Marci ,r 30 (teaching the measuring of intensity levels or amplitude of responses). Thus, we are not persuaded by Appellant's argument that the Examiner erred in reasonably finding that one of ordinary skill in the art would understand that Marci teaches "determining that the emotional response of an individual satisfies a predefined condition in an instance in which the emotional response is within a range that includes a plurality of related emotional states." Appeal. Br. 10. Appellant does not dispute that it would have been obvious to combine Staudacher and Marci as set forth in the rejection. Compare Appeal Br. 5-13, with Final Act. 5. Accordingly, based on the preponderance of the evidence, we sustain the rejection of claims 1-20 and 27-29. Claims 24-26 Claim 24 depends from independent claim 1 and recites "causing performance of an action comprises causing performance of an action that interacts with some, but not all of the individuals so as to alter the attentional focus of a subset of the individuals." Appeal Br. 19 (Claims App.). 7 Appeal 2018-003812 Application 13/630,898 Claim 25, which depends from independent claim 8, and claim 26, which depends from independent claim 15, include similar recitations to claim 24. The Examiner finds Norfolk teaches the recitations of claims 24--26. Final Act. 9 (citing Norfolk ,r,r 12, 92, 99, 102). Appellant argues that Norfolk fails to teach or suggest interacting with some, but not all of the individuals, and instead suggests that any interaction is directed to all of the individuals, such as the entire audience. Appeal Br. 12. As Appellant points out in the Reply Brief, the Examiner does not respond to Appellant's arguments regarding claims 24--26. Reply Br. 4--5. We have reviewed Norfolk's disclosure cited by the Examiner regarding claims 24--26 (Final Act. 9), but do not find that it factually supports the Examiner's finding that Norfolk teaches "causing performance of an action comprises causing performance of an action that interacts with some, but not all of the individuals so as to alter the attentional focus of a subset of the individuals." Accordingly, we do not sustain the rejection of claims 24--26. DECISION The rejection of claims 1--4, 6-11, 13-18, 20 and 27-29 under pre- AIA 35 U.S.C. § 103(a) over Staudacher in view of Marci is affirmed. The rejection of claims 5, 12, 19, and 24--26 under pre-AIA 35 U.S.C. § 103(a) over Staudacher, Marci, and Norfolk is affirmed as to claims 5, 12, and 19, and reversed as to claims 24--26. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a). 8 Appeal 2018-003812 Application 13/630,898 AFFIRMED-IN-PART 9 Copy with citationCopy as parenthetical citation