Ex Parte Edwards

Patent Trial and Appeal Board

Sep 29, 2016

12518618 (P.T.A.B. Sep. 29, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
12/518,618 01122/2010 Mark Edwards
23524 7590 10/03/2016
FOLEY & LARDNER LLP
3000 K STREET N.W.
SUITE 600
WASHINGTON, DC 20007-5109
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.
084062-0116 6850
EXAMINER
MATTHEWS, ANDRE L
ART UNIT PAPER NUMBER
2621
NOTIFICATION DATE DELIVERY MODE
10/03/2016 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):
ipdocketing@foley.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex Parte MARK EDWARDS
Appeal2015-001865
Application 12/518,618
Technology Center 2600
Before JEAN R. HOMERE, BETH Z. SHAW, and
JOHN F. HORVATH, Administrative Patent Judges.
SHAW, Administrative Patent Judge.
DECISION ON APPEAL
Appellant seeks our review under 35 U.S.C. § 134(a) of the
Examiner's Final Rejection of claims 1, 2, 5-9, 12-16, and 19-24, which
represent all the pending claims. App. Br. 8. We have jurisdiction under
35 U.S.C. § 6(b).
We affirm-in-part.
Appeal2015-001865
Application 12/518,618
INVENTION
Appellant's invention is directed to a method for generating virtual
reality simulations used to simulate consumer shopping experiences. See
Spec. ,-r 2.
Claim 1 is illustrative and is reproduced below:
1. A computer-implemented method of generating market
research data, comprising:
receiving a set of simulation data describing a shopping
environment to represent in a virtual reality simulation;
generating the virtual reality simulation, based on the
received simulation data,
wherein the virtual reality simulation comprises a plurality
of smart objects, wherein each smart object represents an element
of the shopping environment and is configured to be responsive
to being viewed by a simulation participant interacting with the
shopping environment;
presenting the virtual reality simulation to the simulation
participant on the virtual reality display platform;
monitoring the eye movements of the participant while the
participant interacts with the virtual reality simulation;
storing information describing the monitored eye
movements; and
generating a visualization of the monitored eye
movements, wherein generating the visualization of the
monitored eye movements comprises at least one of:
simulating, based on the monitored eye movements,
a view of a camera moving through the shopping
environment and focused on what was viewed by the
participant as the participant interacted with the virtual
reality simulation; or
generating, based on the monitored eye movements,
a graphical representation of a sequence of smart objects
that were viewed by the participant as the participant
interacted with the virtual reality simulation.
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Application 12/518,618
REJECTIONS
The Examiner rejected claims 1, 2, 5-9, 12-16, 19-21, 23, and 24
under 35 U.S.C. § 103(a) as being unpatentable over Hughes (US
2002/0169665 Al; published Nov. 14, 2002) and Lemelson (US
2003/0020755 Al; published Jan. 30, 2003). Final Act. 2-9.
The Examiner rejected claim 22 under 35 U.S.C. § 103(a) as being
unpatentable over Hughes, Lemelson, and de Lemos (US 2007 /0265507 Al;
published Nov. 15, 2007). Final Act. 9-10.
ANALYSIS
We have reviewed Appellant's arguments in the Briefs, the
Examiner's rejection, and the Examiner's response to the Appellant's
arguments.
Claim 1
The Examiner finds that Hughes teaches a marketing and product
testing system where a user can interact with a virtual shopping
environment. Ans. 10. Hughes teaches that clicks using a joystick or
keyboard are used to interact with the system. Id. at 11 (citing Hughes i-fi-1
70-71). The Examiner also cites paragraph 45 of Hughes, which teaches
that the system is not limited to clicks, and that the system can implement an
eye tracking device. Id. (citing Hughes i145). Appellant argues that the
only disclosure in Hughes regarding the eye tracking device is to collect
data, and that this is not enough to render obvious the claimed "simulating,
based on the monitored eye movements, a view of a camera moving through
the shopping environment and focused on what was viewed by the
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Application 12/518,618
participant as the participant interacted with the virtual reality simulation."
App. Br. 12; Reply Br. 4. We are not persuaded by this argument. As
Hughes describes, "data collected by a system 15 does not have to be limited
to 'clicks' of a mouse or keystrokes." Hughes i-f 45. Hughes describes that
an eye tracking device might provide a researcher with additional detail
regarding a consumer's shopping habits. Id. Thus, we are not persuaded
that Hughes' collection of data is limited to only a particular kind of data or
that the cited disclosure insufficiently teaches or suggests the disputed
limitation. Rather, Hughes expressly teaches that its clicks (for example,
which are used to select arrow icons to navigate the virtual shopping
environment, see Hughes i-f 70) can be replaced with data from an eye
tracking device.
Appellant also argues that the combination of Hughes and Lemelson
does not teach or suggest "generating, based on the monitored eye
movements, a graphical representation of a sequence of smart objects that
were viewed by the participant as the participant interacted with the virtual
reality simulation." App. Br. 14. We are unpersuaded by this argument. As
discussed above, Hughes expressly contemplates that its clicks can be
replaced with data from an eye tracking device. Hughes i-f 45; Ans. 11. As
the Examiner finds, and we agree, Hughes teaches generating a graphical
representation of a sequence of smart objects because Hughes teaches
allowing a shopper to add items that were viewed and selected to a cart and
to view the items before purchase. Id.; Hughes i-fi-1 70-71. As discussed
above, Hughes teaches that its system is not limited to "clicks," and can use
data from an eye tracking device. Hughes i-f 45. Thus, we agree that Hughes
teaches "generating, based on the monitored eye movements, a graphical
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Appeal2015-001865
Application 12/518,618
representation of a sequence of smart objects that were viewed by the
participant as the participant interacted with the virtual reality simulation,"
as recited in claim 1.
Additionally, Appellant makes a general allegation that the
combination of Hughes and Lemelson is improper. App. Br. 15. Section
103 forbids issuance of a patent when "the differences between the subject
matter sought to be patented and the prior art are such that the subject matter
as a whole would have been obvious at the time the invention was made to a
person having ordinary skill in the art to which said subject matter pertains."
KSR Int'! Co. v. Teleflex Inc., 550 U.S. 398, 406 (2007). Upon reviewing
the record before us, we find that the Examiner's suggestion for the
proposed modification of the prior art suffices as an articulated reason with
some rational underpinning to establish a prima facie case of
obviousness. See id. at 418. In summary, we find that an ordinarily skilled
artisan at the time of the claimed invention would have combined Hughes'
virtual reality system using an eye tracking device (see Hughes, i-fi-1 70, 71,
45), with Lemelson's eye tracking system that monitors the eye movements
of a user interacting with a system (see Lemelson, Figs. 6A-6D, i-f 17) to
predictably create a system that uses eye tracking data for various purposes,
such as to modify images. See Ans. 4. In the absence of sufficient evidence
or line of technical reasoning to the contrary, the Examiner's findings are
reasonable and we find no reversible error. Accordingly, we sustain the
rejection of claim 1.
Dependent Claim 2
We concur with Appellant that the cited portion of Lemelson does not
teach "superimposing a path of the participant's gaze on a display of the
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virtual shopping environment simulation." App. Br. 16. Rather, although
Lemelson discloses a scroll direction based on the detected gaze direction,
we disagree with the Examiner's conclusion that this teaches superimposing,
or laying a path of the gaze, onto the display. Accordingly, we do not
sustain the Examiner's rejection of claim 2, or of claims 9 and 16, which
contain similar recitations.
Dependent Claim 5
We agree with Appellant that the cited portions of Hughes do not
teach "upon determining whether the participant is viewing one of the smart
objects, generating a record describing how long the participant views that
smart object," as recited in claim 5. App. Br. 16-17. While it seems to
make sense that if research data is collected regarding eye movement, then
the time an object was viewed would also be recorded, this is not explicitly
taught by Hughes, and the Examiner has not stated that such a teaching
would have been obvious to one of ordinary skill in the art. Accordingly,
constrained as we are by the record before us, we do not sustain the
Examiner's rejection of claim 5, or of claims 12 and 19, which contain
similar recitations.
Dependent Claim 6
We agree with Appellant that the cited portions of Hughes and
Lemelson do not teach "graphically representing a relative degree of
attention received by the smart objects within the graphical representation of
the sequence of smart objects," as recited in claim 6. App. Br. 17-19. We
disagree with the Examiner's finding that any degree in which the object is
presented is a relative degree. Ans. 13. We note that the relative amount of
time a user considers an object is a measure of the relative attention received
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by the object. We also note that, although it seems likely that a market
researcher using Hughes' system would have recorded the amount of time a
user examines various objects to obtain detailed consumer shopping habit
information, the Examiner has made no such findings regarding the
teachings of Hughes. Accordingly, we do not sustain the Examiner's
rejection of claim 6, or claims 13 and 20, which contain similar recitations.
Dependent Claim 23
We are not persuaded by Appellant's arguments that Hughes does not
teach "correlating the heart rate data with the information describing the
monitored eye movements," as recited in claim 23. App. Br. 20. Hughes
teaches using heart monitoring devices and an eye tracking device. See
Hughes i-f 45. We agree with the Examiner's finding that it would have been
obvious to one of skill in the art, given paragraph 45 of Hughes, to correlate
the heart rate data with the information describing the monitored eye
movements, because Hughes' methods are described as being used to
monitor and track consumer behavior such as a consumer's shopping habits
(Ans. 13), and Hughes describes heart rate data and monitored eye
movements as being able to provide a researcher with additional detail
regarding a consumer's shopping habits. Hughes i-f 45. Accordingly, we
sustain the rejection of claim 23.
Dependent Claim 24
We are not persuaded by Appellant's arguments that Hughes fails to
teach "generating one or more of the plurality of smart objects based on
consumer product preferences provided by the participant," as recited in
claim 24. App. Br. 20-21. We agree with the Examiner's finding that
paragraph 77 of Hughes teaches that the adjustment of the virtual
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environment is done based on the panelists' data or input. Ans. 14.
Appellant provides insufficient evidence proving that the Specification or
claims limit "consumer product preferences" in a way that, under a broad but
reasonable interpretation, is not encompassed by Hughes' teachings of
panelist input, which is used to re-program and change "an identifiable
characteristic of a product such as price, packaging, location of a product on
a store shelf or arrangement within an aisle." Hughes i-f 77. Accordingly,
we sustain the rejection of claim 24.
Because Appellant has not presented separate patentability arguments
or has reiterated substantially the same arguments as those previously
discussed for patentability above (see App. Br. 8-22), the remaining pending
claims fall forthe same reasons as claim I. See 37 C.F.R. § 41.37(c)(l)(iv).
DECISION
We affirm the rejections of claims 1, 7, 8, 14, 15, and 21-24.
We reverse the rejections of claims 2, 5, 6, 9, 12, 13, 16, 19, and 20.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(l )(iv).
AFFIRMED-IN-PART
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