Ex Parte Baker

Patent Trial and Appeal Board

Mar 9, 2016

12311025 (P.T.A.B. Mar. 9, 2016)

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.
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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
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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.
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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.
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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
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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