Ex Parte BakerDownload PDFPatent Trial and Appeal BoardMar 9, 201612311025 (P.T.A.B. Mar. 9, 2016) Copy Citation 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. 12/311,025 03/17/2009 Richard John Baker 8239.01 3403 37833 7590 03/10/2016 LITMAN LAW OFFICES, LTD. PATENT LAW BUILDING 8955 CENTER STREET MANASSAS, VA 20110 EXAMINER CARLOS, ALVIN LEABRES ART UNIT PAPER NUMBER 3715 MAIL DATE DELIVERY MODE 03/10/2016 PAPER 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. PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte RICHARD JOHN BAKER ____________ Appeal 2014-001855 Application 12/311,0251 Technology Center 3700 ____________ Before NINA L. MEDLOCK, KENNETH G. SCHOPFER, and BRADLEY B. BAYAT, Administrative Patent Judges. SCHOPFER, Administrative Patent Judge. DECISION ON APPEAL This is an appeal under 35 U.S.C. § 134 from the rejection of claims 1–24 and 26. We have jurisdiction under 35 U.S.C. § 6(b). We affirm. BACKGROUND According to Appellants, This invention relates to a method and apparatus for providing personalized audio-visual instruction and in particular to a method and apparatus which uses sensed data coordinates of a human movement or movement of an object in order to provide 1 Appellant does not identify a real party in interest for this appeal. See Br. 1–14. Appeal 2014-001855 Application 12/311,025 2 the basis for producing a personalized audio-visual teaching presentation or aid. Spec. 1. CLAIMS Claims 1–24 and 26 are on appeal. Claim 1 is illustrative of the appealed claims and recites: 1. A computer software product that includes a non- transitory storage medium readable by a processor, the non- transitory storage medium having stored thereon a set of instructions for providing a personalized audio-visual instructional aid for assisting a person to emulate preferred positions and/or movements in undertaking an activity, the instructions comprising: (a) a first set of instructions which, when loaded into main memory and executed by the processor, causes the processor to capture position and/or movement data of said person or part of said person or an object associated with and controlled by said person whilst said person undertakes said activity using position and/or movement sensing means attached to or worn by said person or attached to said object; (b) a second set of instructions which, when loaded into main memory and executed by the processor, causes the processor to analyze and compare said captured data with pre-stored data relating to preferred positions and/or movement in undertaking said activity; (c) a third set of instructions which, when loaded into main memory and executed by the processor, causes the processor to generate a visual presentation based on the differences between the captured position and/or movement of said person or object and said preferred positions and/or movement; and (d) a fourth set of instructions which, when loaded into main memory and executed by the processor, causes Appeal 2014-001855 Application 12/311,025 3 the processor to add to said generated visual presentation audio textual instructional comments relating to said differences to assist the person to emulate said preferred positions and/or movement. Br., Claims App. REJECTION The Examiner rejects claims 1–24 and 26 under 35 U.S.C. § 103(a) as unpatentable over Bizzi2 in view of Evensen.3 DISCUSSION Appellant raises general arguments regarding the rejection as a whole and specific arguments regarding certain dependent claims. See Br. 7–13. We address claim 1 below as representative of the appealed claims and also address Appellant’s specific arguments regarding the dependent claims to the extent appropriate. Claim 1 With respect to claim 1, the Examiner finds that Bizzi discloses a computer software product including a first, second, and third set of instructions as claimed. Final Action 4 (citing Bizzi col. 3, ll. 9–19; col. 4, ll. 4–12; col. 6, ll. 11–38; col. 7, ll. 6–42; Figs. 16, 17). The Examiner acknowledges that Bizzi does not disclose a fourth set of instructions as claimed because Bizzi does not teach providing audio instructional comments to assist a person to emulate preferred positions or movement. Id. at 4–5. The Examiner finds that Evensen discloses adding audio instructional comments to a visual presentation based on differences 2 Bizzi et al., US 5,846,086, iss. Dec. 8, 1998. 3 Evensen, US 2003/0054327 A1, pub. Mar. 20, 2003. Appeal 2014-001855 Application 12/311,025 4 between a captured position or movement and a preferred position or movement. Id. at 5 (citing Evensen ¶¶ 91, 92).4 The Examiner concludes that it would have been obvious to modify Bizzi’s virtual motion learning system with Evensen’s teaching of adding prerecorded audio instructional feedback so that a user may have an opportunity to use the system without involvement of a live instructor or coach. Id. We agree with and adopt the Examiner’s findings regarding the scope and content of the prior art with respect to claim 1. Final Action 4–5; Ans. 3–6. For the reasons set forth below, we are not persuaded of error by Appellant’s arguments. Appellant first argues that Bizzi does not contemplate the need for, or have the capability of, providing instructional comments. Br. 7. Appellant explains that Bizzi is only capable of providing audio as tones of varying frequency and “Bizzi does not include sensors that would allow for useful audio comments.” Id. at 7–8. However, the Examiner acknowledges that Bizzi does not have this capability and relies on Evensen to show that adding this capability would have been obvious. Appellant’s attack on Bizzi individually is not persuasive. Next, Appellant argues that Bizzi “is designed to be used with a coach or instructor” and that adding audio instructions “destroys the Bizzi reference and renders it less effective for its intended purpose.” Br. 8. We are not persuaded that the proposed modification of Bizzi would defeat or destroy Bizzi’s purpose. Bizzi is concerned with providing an automated 4 Although the Examiner lists paragraphs 41 and 42 in the rejection, the description provided in the Final Action and the Answer relate to the disclosure found in paragraphs 91 and 92. See Final Action 5; Ans. 5. Appeal 2014-001855 Application 12/311,025 5 system to measure a student’s performance as compared to a teacher’s exemplary performance. See Bizzi Abstract. We disagree that adding pre- recorded audio instructions, i.e. a virtual teacher, is contradictory with that purpose and may, as the Examiner notes, allow users to benefit from the system when a live instructor is not available. Appellant also provides a list of other reasons why the Examiner erred, including that the proposed combination is nonsensical; that there would be no motivation to combine the references because “they have different ways of accomplishing their goal;” that “a mere showing of a possibility is insufficient basis for obviousness absent any teaching or suggestion for the modification;” that the Examiner is inappropriately “picking and choosing features from references, destroying references, and reasoning in a convoluted manner;” and that the rejection is based on impermissible hindsight. Br. 9–11. We are not persuaded by any of these reasons particularly because they have been presented in a conclusory manner including only citations to case law without adequate explanation as to why the rejection violates the principles listed. Based on the foregoing, we determine that the Examiner established a prima facie showing of obviousness with respect to claim 1 without error. Accordingly, we sustain the rejection of claim 1. Claims 2–17 and 21–24 have not been separately argued and fall with claim 1. Claim 18 Claim 18 requires a computer having a database with pre-recorded image data. Appellant argues that “Bizzi does not have a database and records an instructor’s movements, and the combination with Evensen does not overcome the deficiency.” Br. 12. We are not persuaded of error. We Appeal 2014-001855 Application 12/311,025 6 agree with the Examiner that Bizzi discloses a library of stored teacher’s movements that may be considered a database under the broadest reasonable interpretation of the claim. Ans. 6–7 (citing Bizzi col. 4; ll. 13–33; col. 7, ll. 22–42). Accordingly, we sustain the rejection of claim 18. Claims 19 and 20 Regarding claims 19 and 20, Appellant argues only that the proposed combination “destroys the Bizzi apparatus.” Br. 12. We are not persuaded by this argument for the same reasons identified above with respect to claim 1, and thus, we sustain the rejection of claims 19 and 20. Claim 26 With respect to claim 26, Appellant recites the claim limitations and argues “[a]lthough the Examiner states that Bizzi teaches this feature . . . this feature is not seen in the prior art.” Appellant’s argument does not specifically address the Examiner’s findings regarding this claim (see Final Action 13; Ans. 7), and without further explanation, we are not persuaded by this argument. Thus, we sustain the rejection of claim 26. CONCLUSION For the reasons set forth above, we affirm the rejection of claims 1–24 and 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)(1)(iv). AFFIRMED Copy with citationCopy as parenthetical citation