Ex Parte Henderson

Patent Trial and Appeal Board

Nov 22, 2017

13874611 (P.T.A.B. Nov. 22, 2017)

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.
13/874,611 05/01/2013 Matthew Henderson 10297-002US1 8759
96039 7590 11/27/2017
Mennier Parlin Rr PiiiTtrian T T C
EXAMINER
999 Peachtree Street NE GATTEW, ASTEWAY T
Suite 1300
Atlanta, GA 30309 ART UNIT PAPER NUMBER
2173
NOTIFICATION DATE DELIVERY MODE
11/27/2017 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):
docketing@mcciplaw.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte MATTHEW HENDERSON
Appeal 2017-007922
Application 13/874,6111
Technology Center 2100
Before ST. JOHN COURTENAY III, LARRY J. HUME, and
JOYCE CRAIG, Administrative Patent Judges.
HUME, Administrative Patent Judge.
DECISION ON APPEAL
This is a decision on appeal under 35 U.S.C. § 134(a) of the final
rejection of claims 1-20. We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.
1 According to Appellant, the real party in interest is Prime Wellness LLC.
App. Br. 3.
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Application 13/874,611
STATEMENT OF THE CASE2
The Invention
Appellant's disclosed embodiments and claimed invention relate to
"systems and methods for enabling an end-user of an online exercise
application to change exercise difficulty levels by interacting with a control
panel on the application graphical user interface." Spec. ^ 3.
Exemplary Claim
Claim 1, reproduced below, is representative of the subject matter on
appeal (emphasis added to contested limitation):
1. A method for customizing an exercise program
having a plurality of modules, each of the plurality of modules
having a plurality of levels of difficulty, comprising:
communicating a web page from a website associated
with exercise application to an end user at a computing device;
presenting the exercise program in a graphical user
interface displayed via the web page that includes a control
panel having level of difficulty controls that change a level of
difficulty of one of the plurality of modules currently being
displayed in the graphical user interface;
receiving, via the control panel in the graphical user
interface, end user commands;
altering the level of difficultly of the one of the plurality
of modules currently being displayed in the graphical user
interface by retrieving another of the plurality of levels of
difficulty of the one of the plurality of modules currently being
displayed; and
2 Our decision relies upon Appellant's Appeal Brief ("App. Br.," filed
April 15, 2016); Examiner's Answer ("Ans.," mailed Nov. 4, 2016); Final
Office Action ("Final Act.," mailed Sept. 30, 2015); and the original
Specification ("Spec.," filed May 1, 2013).
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Application 13/874,611
storing, on a per-end user basis, the altered level of
difficulty of the one of the plurality of modules currently being
displayed in a database.
Prior Art
The Examiner relies upon the following prior art as evidence in
rejecting the claims on appeal:
Dalebout et al. ("Dalebouf') US 5,512,025
Yi US 2009/0193465 Al
Kolman et al. ("Kolman") US 2010/0304932 Al
Bass US 2012/0144301 Al
April 30, 1996
July 30, 2009
Dec. 2, 2010
June 7, 2012
Rejections on Appeal
Rl. Claims 1-7, 9-17, 19, and 20 stand rejected under 35 U.S.C.
§ 103(a) as obvious over the combination of Bass, Kolman, and Dalebout.
Final Act. 2.
R2. Claims 8 and 18 stand rejected under 35 U.S.C. § 103(a) as
obvious over the combination of Bass, Kolman, Dalebout, and Yi. Final
Act. 8.
CFAIM GROUPING
Based on Appellant's arguments (App. Br. 7-15), we decide the
appeal of Rejection Rl of claims 1-7, 9-17, 19, and 20 on the basis of
representative claim 1. We address remaining claims 8 and 18 in Rejection
R2, not argued separately, infra.
ISSUE
Appellant argues (App. Br. 7-14) the Examiner's Rejection Rl of
claims 1-7, 9-17, 19, and 20 under 35 U.S.C. § 103(a) as being obvious
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over the combination of Bass, Kolman, and Dalebout is in error. These
contentions present us with the following issue:
Did the Examiner err in finding the cited prior art combination teaches
or suggests "[a] method for customizing an exercise program having a
plurality of modules, each of the plurality of modules having a plurality of
levels of difficulty" that includes, inter alia, the step of "presenting the
exercise program in a graphical user interface displayed via the web page
that includes a control panel having level of difficulty controls that change a
level of difficulty of one of the plurality of modules currently being
displayed in the graphical user interface," as recited in claim 1?
ANALYSIS
In reaching this decision, we consider all evidence presented and all
arguments actually made by Appellant. We do not consider arguments
which Appellant could have made but chose not to make in the Briefs so that
we deem any such arguments as waived. 37 C.F.R. § 41.37(c)(l)(iv).
We disagree with Appellant's arguments with respect to claims 1-20,
and we incorporate herein and adopt as our own: (1) the findings and
reasons set forth by the Examiner in the action from which this appeal is
taken, and (2) the reasons and rebuttals set forth in the Examiner's Answer in
response to Appellant's arguments. We incorporate such findings, reasons,
and rebuttals herein by reference unless otherwise noted. However, we
highlight and address specific findings and arguments regarding claim 1 for
emphasis as follows.
Appellant contends Bass does not teach the disputed limitation "a
control panel having level of difficulty controls that change a level of
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difficulty," as recited in claim 1, because "Bass discloses that the 'selectable
modules' have a level of difficulty which is set by the system prior to the
user selecting the module, the user does not set the difficulty of any of the
'selectable modules.'" App. Br. 9. Appellant further argues "no user in Bass
is given the option to select the level of any given 'selectable module,' but
rather the system itself sets the difficulty of the 'selectable modules.'" App.
Br. 10.
Appellant further argues:
Although Bass discloses that a user can "manually select
different modules displayed on the user interface," the users of
Bass do not select the difficulty of any of these selectable
modules, rather, any difficulty is set by the system itself and set
before that module is displayed. (See Bass's specification
paragraph [0039]). Accordingly the users of Bass are unable to
directly request a change to the difficulty of an exercise
module, nor can the users request a change to the difficulty of a
module that is "currently being displayed in the graphical user
interface."
App. Br. 11.
We are not persuaded by Appellant's arguments because Appellant is
arguing the references separately when the rejection is for obviousness,
relying upon what the reference combination would have suggested to a
person of ordinary skill in the art. "One cannot show non-obviousness by
attacking references individually where ... the rejections are based on
combinations of references." In re Keller, 642 F.2d 413, 426 (CCPA 1981).
The Examiner cites Dalebout for teaching a control panel having a "level of
difficulty controls" and receiving, via the control panel, end user commands
to change the level of difficulty. Final Act. 4-5, citing Dalebout, Fig. 3,
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Abstract, col. 3,11. 1-7, col. 7,11. 33^17. The Examiner also cites Kolman
for teaching a graphical user interface that includes a control panel having a
level controls and receiving, via the control panel in the graphical user
interface, end user commands. Final Act. 4.
We agree with the Examiner's finding that the combination of Bass,
Kolman, and Dalebout teaches or suggests "a control panel having level of
difficulty controls that change a level of difficulty," as recited in claim 1.
Ans. 3—4. We agree with the Examiner because Dalebout's control panel,
which adjusts levels of a particular exercise difficulty parameter, teaches or
at least suggests "control panel having level of difficulty controls that
change a level of difficulty of one of the plurality of modules." Id., citing
Dalebout, Fig. 3, col. 7,11. 33^17.
Appellant also argues the Examiner's "proposed combination would
require a substantial change and redesign of Bass's principle of operation
and/or render Bass inoperable for its intended purpose." App. Br. 11.
However, contrary to Appellant's argument, it is well settled that "a
determination of obviousness based on teachings from multiple references
does not require an actual, physical substitution of elements." In re Mouttet,
686 F.3d 1322, 1332 (Fed. Cir. 2012) (citations omitted). Nor is the test for
obviousness whether a secondary reference's features can be bodily
incorporated into the structure of the primary reference. See In re Keller,
642 F.2d 413, 425 (CCPA 1981).
The Examiner finds Bass's graphical user interface provides a user
with selections within the modules that will allow the user to advance to the
next progression level. Ans. 5. The Examiner further finds one of ordinary
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skill in the art would have modified Bass's teachings with Kolman's control
panel and graphical user interface in order to display and operate control
buttons on a graphical user interface. Id.
In agreement with the Examiner's findings, we find the combination
of Bass's exercise graphical interface with Kolman's and Dalebout's control
panels that change the level of difficulty of an exercise program would not
have been "uniquely challenging or difficult for one of ordinary skill in the
art." See Leapfrog Ent. Inc v. Fisher-Price Inc., 485 F.3d 1157, 1162 (Fed.
Cir. 2007).
Therefore, based upon the findings above, on this record, we are not
persuaded of error in the Examiner's reliance on the combined teachings and
suggestions of the cited prior art combination to teach or suggest the
disputed limitation of claim 1, nor do we find error in the Examiner's
resulting legal conclusion of obviousness. Therefore, we sustain the
Examiner's obviousness rejection of independent claim 1, and grouped
claims 2-7, 9-17, 19, and 20, which fall therewith. See Claim Grouping,
supra.
§103 Rejection R2 of Claims 8 and 18
In view of the lack of any substantive or separate arguments directed
to obviousness Rejection R2 of claims 8 and 18 under § 103(a) (see App.
Br. 14-15), we sustain the Examiner's rejections of these claims. Arguments
not made are waived.
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CONCLUSION
The Examiner did not err with respect to obviousness Rejections R1
and R2 of claims 1-20 under 35 U.S.C. § 103(a) over the cited prior art
combinations of record, and we sustain the rejections.
DECISION
We affirm the Examiner's decision rejecting claims 1-20.
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). See 37
C.F.R. § 41.50(f).
AFFIRMED
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