Ex Parte Grisham et al

Patent Trial and Appeal Board

Feb 7, 2017

10426294 (P.T.A.B. Feb. 7, 2017)

United States Patent and Trademark Office
UNITED STATES DEPARTMENT OF COMMERCE
United States Patent and Trademark Office
Address: COMMISSIONER FOR PATENTS
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APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
146.01 4330
EXAMINER
GEBREMICHAEL, BRUK A
ART UNIT PAPER NUMBER
3715
MAIL DATE DELIVERY MODE
10/426,294 04/30/2003
33321 7590 02/07/2017
MAGUIRE LAW OFFICE
423 E ST.
DAVIS, CA 95616
David Grisham
02/07/2017 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 DAVID GRISHAM, GORDON EPSTEIN,
MAUREEN POWERS, and PHILLIP RILES1
Appeal 2014-006122
Application 10/426,294
Technology Center 3700
Before GEORGE R. HOSKINS, BRANDON J. WARNER, and
AMANDA F. WIEKER, Administrative Patent Judges.
WIEKER, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
David Grisham et al. (“Appellants”) appeal under 35 U.S.C. § 134(a)
from the Examiner’s final rejection of claims 1—4, 6—9, 12—16, and 18—20.
Appeal Br. 2.2 We have jurisdiction over the appeal under 35 U.S.C. § 6(b).
We AFFIRM.
1 According to Appellants, the Real Parties in Interest are the named
inventors. Appeal Br. 2 (filed Oct. 13, 2013) (although the Appeal Brief
does not provide page numbers, we designate the cover page as page 1 and
number the pages consecutively therefrom for convenience).
2 Claims 5, 10, 11, 17, and 21 have been cancelled. Id.
Appeal 2014-006122
Application 10/426,294
CLAIMED SUBJECT MATTER
The invention concerns “sensory/perceptual skills assessment and
training.” Spec. 13. Claim 1 is illustrative of the subject matter on appeal,
and recites:
1. A method for assessing and treating a
sensory/perceptual skills deficiency, comprising:
providing 3-D glasses, said glasses comprising a
first lens having a first filter of a first color and a second
lens having a second filter of a second color;
providing four arrow keys;
evaluating a subject’s skills in a particular
sensory/perceptual field;
referring said subject to training based on said
evaluation, said referred subject having a visual skills
deficiency in saccadic accuracy, vergence, or
accommodation;
using an interactive network-based training module
and said 3-D glasses to treat said visual skills deficiency
of the referred subject, wherein said training module:
dichoptically presents a first image having
said first color and a second image having said
second color,
requires inputs from the subject via said four
arrow keys, said inputs corresponding to the
position of the image detected by the subject, and
requires the use of both of said subject’s eyes,
generating training data from the use of said
network-based training module by said referred subject;
and
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uploading said training data to a centralized,
network-accessible database on the Internet.
Appeal Br. 15—16 (Claims App.).
REJECTIONS
The claims stand rejected as follows:
I. Claims 1, 12, 15, 16, and 18 under 35 U.S.C. § 103(a) as
unpatentable over Galanter3 and Polat.4
II. Claims 2-4 and 6—8 under 35 U.S.C. § 103(a) as unpatentable
over Galanter, Polat, and Mosleh.5
III. Claim 9 under 35 U.S.C. § 103(a) as unpatentable over
Galanter, Polat, Mosleh and Franz.6
IV. Claims 13 and 14 under 35 U.S.C. § 103(a) as unpatentable
over Galanter, Polat, and Surwit.7
V. Claim 19 under 35 U.S.C. § 103(a) as unpatentable over
Galanter and Franz.
VI. Claim 20 under 35 U.S.C. § 103(a) as unpatentable over
Galanter, Franz, and Whitson.8
3 US 5,363,154, iss. Nov. 8, 1994.
4 US 2003/0109800 Al, pub. June 12, 2003.
5 US 7,899,910 Bl, iss. Mar. 1,2011.
6 US 2003/0117580 Al, pub. June 26, 2003.
7 US 6,980,958 Bl, pub. Dec. 27, 2005.
8 US 2002/0128870 Al, pub. Sept. 12, 2002.
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Application 10/426,294
ANALYSIS
Rejection I— Galanter andPolat—Claims 1, 12, 15, 16, and 18
Appellants argue claims 1, 12, 15, 16, and 18 as a group. Appeal Br.
6. We select claim 1 as representative, and claims 12, 15, 16, and 18 stand
or fall with claim 1. 37 C.F.R. § 41.37(c)(l)(iv).
The Examiner finds that Galanter discloses exercises for assessing and
treating sensory/perceptual skills deficiencies including, inter alia, a training
exercise in which a subject “inputs his/her responses via four arrow keys,
said inputs corresponding to the position of the image detected by the
subject.” Final Act. 3^4 (mailed May 31, 2013). The Examiner concludes:
it would have been obvious ... to modify one or more of the
training exercises by prompting the subject to indicate the
direction of the image that he/she perceived... and also enabling
the subject to use the keys on the keyboard to input his/her
responses, in order to enhance the vision exercise by
incorporating additional challenges that further develops the
user’s vision; and also to provide additional flexibility to the
subject to input his/her response(s) so that the subject would have
a better chance to respond quickly and effectively; thereby
making the training exercise more successful.
Id. at 4—5.
The Examiner also finds that Galanter does not disclose uploading
training data to a network-accessible database on the Internet, and relies
upon Polat for such a teaching. Id. at 5. The Examiner concludes it would
have been obvious to modify “the invention of Galanter in view of Polat by
connecting the training system to an online server over the Internet,” which
would “enable users to easily access training data or performance results at
any time so that the users would have more flexibility to interact with the
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system at their convenience; thereby making the system more efficient by
enhancing its accessibility to users.” Id.
Appellants present several arguments that are not commensurate with
pending claim 1. Such arguments do not demonstrate Examiner error
because limitations not appearing in the claims cannot be relied upon for
patentability. In re Self, 671 F.2d 1344, 1348 (CCPA 1982); see also Ans.
17, 19, 22. For example, the pending claims do not contain limitations
directed to “a criterion-free 4-altemative forced choice methodology”
(Appeal Br. 6), a system that “obtain[s] the least biased data possible” (id. at
7), a “system [that] keeps track not only of whether the response is correct or
not, but whether it matches the stimulus conditions” (id. at 8), a system
concerned with “threshold limits” (id.), or exercises that “attain high levels
of cortical significance” (id. at 9).
To the extent Appellants’ argument directed to a “criterion-free 4-
altemative forced choice methodology,” (see Appeal Br. 6—9), implicates the
Examiner’s finding that Galanter teaches inputting responses via four arrow
keys, we conclude that the Examiner’s finding is supported by a
preponderance of evidence. Final Act. 4. Galanter discloses an exercise in
which a subject is instructed to input the direction of a displayed arrow,
wherein the arrow’s orientation and color changes every two to eight
seconds, using a keyboard’s arrow keys. Galanter, 19:14—33, Fig. 30. This
disclosure satisfies the relevant limitations of pending claim 1, which require
“providing four arrow keys . . . [and] wherein said training module . . .
requires inputs from the subject via four arrow keys, said inputs
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corresponding to the position of the image detected by the subject.” Appeal
Br. 15 (Claims App.).
We are also unpersuaded by Appellants’ argument that Galanter does
not disclose a “network-based training module,” as required by claim 1.
Appeal Br. 9. First, Appellants’ Specification broadly defines “network” as
“any data transmission system between two or more remote sites,” which
“includes but is not limited to the internet.” Spec. 1 58. Therefore, we agree
with the Examiner that Galanter’s disclosure of interconnected electronic
devices, such as a computer and printer, satisfies this broad definition. Ans.
27—28; see Galanter, Fig. 3A. Second, the Examiner’s rejection relies upon
the combination of Galanter and Polat, wherein Polat teaches a network-
based system for improving visual perception, which is connected to the
Internet. Final Act. 5. Therefore, the combination as a whole renders
obvious this aspect of Appellants’ claim. “Non-obviousness cannot be
established by attacking references individually where the rejection is based
upon the teachings of a combination of references.” See In re Merck & Co.,
Inc., 800 F.2d 1091, 1097 (Fed. Cir. 1986).
Additionally, we are unpersuaded by Appellants’ argument directed to
“flexibility.” Appellants contend that “[additional ‘flexibility,’ as argued by
the Examiner, would only introduce additional variables to the data
collection process, thereby making the data collected less reliable and not
more reliable,” in contrast to “the 4-altemative forced choice method, where
the subject can only indicate whether a target is up, down, left or right and
not what shape it is or what number it represents, [which] provides such
rigor.” Appeal Br. 8; see also Final Act. 4—5. As discussed above,
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Appellants’ claim 1 does not recite a forced choice method. Further, despite
Appellants’ argument, Galanter indeed discloses an exercise in which “the
subject can only indicate whether a target is up, down, left or right and not
what shape it is or what number it represents,” through the keyboard’s arrow
keys. Galanter, 19:14—33, Fig. 30; Ans. 24—25. As such, Appellants have
not persuaded us that the Examiner’s rejection is in error.
Appellants’ arguments directed to details of Polat’s system and
method for testing visual acuity, (see Appeal Br. 10-13), are not responsive
to the Examiner’s rejections. Indeed, the Examiner relies on Polat only for
its disclosure of a network connection to the Internet (Final Act. 5, 7), a
remote database {id.), an accessible database (id. at 8), an interactive Internet
module (id. at 11), and referring multiple users for training and generating
priority scores (id. at 13). See also Ans. 28, 31—34.
Accordingly, Appellants have not demonstrated error in the
Examiner’s rejection of claim 1 and we affirm the rejection of claims 1,12,
15, 16, and 18.
Rejection II— Galanter, Polat, and Mosleh — Claims 2—4 and 6—8
Appellants argue claim 4 separately, but do not present separate
substantive argument regarding the Examiner’s rejection of claims 2, 3, or
6—8. Appeal Br. 10—13. Regarding claim 4, Appellants contend that
“Galanter teaches away from group data in that it is designed for
clinical/subjective evaluation. The data could be disseminated . . . but the
data would still only be useful on a case-by-case basis approach.” Id. at 10.
A prior art reference is said to teach away from an applicant’s invention
“when a person of ordinary skill, upon reading the reference, would be
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discouraged from following the path set out in the reference, or would be led
in a direction divergent from the path that was taken by the applicant.” In re
Gurley, 27 F.3d 551, 553 (Fed. Cir. 1994). That Galanter may be “designed
for clinical/subjective evaluation” does not teach away from generating
averaged data from a plurality of subjects, as claimed. Appeal Br. 16
(Claims App.); Final Act. 9—10. Appellants do not cite to any portion of
Galanter that discourages such data analysis and, as the Examiner finds,
averaging data provides advantages, such as allowing a user to compare their
results to the average. Final Act. 10; Ans. 29—30.
Accordingly, Appellants have not demonstrated error in the
Examiner’s rejection of claims 2-4 and 6—8 and we affirm the rejection of
those claims.
Rejections III—VI—Claims 9, 13, 14, 19, and 20
Appellants do not present substantive argument regarding the
Examiner’s rejections of claims 9, 13, 14, 19, and 20. Appeal Br. 13.
Accordingly, Appellants have not persuaded us of error in the Examiner’s
rejections, which we affirm.9
DECISION
The rejections of claims 1—4, 6—9, 12—16, and 18—20 are AFFIRMED.
9 Appellants state that the Examiner rejected claim 19 over Polat and
Galanter, and rejected claim 20 over Polat, Galanter, and Whitson. Appeal
Br. 13. This is an incorrect statement of the Examiner’s rejections. See
Final Act. 14—16 (rejecting claim 19 over Galanter and Franz), 16—17
(rejecting claim 20 over Galanter, Franz, and Whitson); Ans. 34.
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Application 10/426,294
AFFIRMED
9