Ex Parte Kim et al

Patent Trial and Appeal Board

Feb 29, 2016

12693159 (P.T.A.B. Feb. 29, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
12/693, 159 01125/2010
66547 7590 03/01/2016
THE FARRELL LAW FIRM, P,C
290 Broadhollow Road
Suite 210E
Melville, NY 11747
FIRST NAMED INVENTOR
Jae-PilKIM
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.
678-3870 (Pl 7275) 3510
EXAMINER
UHLIR, CHRISTOPHER J
ART UNIT PAPER NUMBER
2837
MAILDATE DELIVERY MODE
03/01/2016 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
Exparte JAE-PIL KIM and SUN-TAE JUNG
Appeal2014-002232
Application 12/693,159 1
Technology Center 2800
Before ELENI MANTIS MERCADER, NATHAN A. ENGELS, and
JOHN D. HAMANN, Administrative Patent Judges.
HAMANN, Administrative Patent Judge.
DECISION ON APPEAL
Appellants file this appeal under 35 U.S.C. § 134(a) from the
Examiner's Final Rejection of claims 1-10. We have jurisdiction under
35 U.S.C. § 6(b). We affirm.
THE CLAIMED INVENTION
Appellants' claimed invention relates to "searching for music by using
a biological signal such as an ElectroCardioGram (ECG) or a
PhotoPlethysmoGraphy (PPG)." Spec. 1, 11. 15-17.
Of the claims on appeal, claim 6 is illustrative of the subject matter of
the appeal and is reproduced below.
1 According to Appellants, the real party in interest is Samsung Electronics
Co, Ltd. App. Br. 1.
Appeal2014-002232
Application 12/693, 159
6. A method for searching for a sound source, comprising:
extracting sound source feature information about a
sound source when the sound source is selected by a user;
measuring a biological signal of the user for a plurality of
situations of the user;
extracting biological signal feature information about the
measured biological signal according to a plurality of user
situation information;
generating a feature information table by matching the
extracted biological signal feature information to the extracted
sound source feature information corresponding to the plurality
of the user situation information;
measuring a biological signal at a request for updating a
sound source play list of the user;
detecting similar biological signal feature information to
the extracted biological signal feature information from
biological signal feature information stored in the feature
information table;
searching for a sound source having similar sound source
feature information to sound source feature information mapped
to the detected similar biological signal feature information
from a plurality of sound sources; and
updating the sound source play list with the searched
sound source.
REJECTION ON APPEAL
The Examiner rejected claims 1-10 under 35 U.S.C. § 103(a) as being
unpatentable over the combination of Sasaki et al. (US 2008/0236370 Al;
Oct. 2, 2008) (hereinafter "Sasaki"), Sasaki et al. (US 200710169614 A 1;
July 26, 2007) (hereinafter "Michihiko"), and Cho et al. (US 2007 /0203421
Al; Aug. 30, 2007) (hereinafter "Cho"), collectively referred to as the
"combination."
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Application 12/693, 159
ANALYSIS
We have reviewed the Examiner's rejections in light of Appellants'
contentions that the Examiner erred. In reaching our decision, we consider
all evidence presented and all arguments made by Appellants.
We disagree with Appellants' arguments and we incorporate herein
and adopt as our own: (1) the findings and reasons set forth by the Examiner
in the January 10, 2013 Final Office Action (Final Act. 2-8) and (2) the
reasons and rebuttals set forth in the Examiner's Answer (Ans. 2-15). We
incorporate such findings, reasons, and rebuttals herein by reference unless
otherwise noted. We, however, highlight and address specific findings and
arguments below for emphasis.
(1) Feature information table
Appellants argue the cited combination, and particularly Sasaki and
Cho, fails to teach or suggest (i) generating a feature information table and
(ii) referencing the feature information table in searching for a sound source,
in accordance with claim 6. See App. Br. 5---6.
As for Sasaki, Appellants assert Sasaki teaches periodically adjusting
a target tempo up or down based on a user's changing detected and target
heart rates, and searching for music having a tempo matching the target
tempo. See App. Br. 6 (citing Sasaki i-fi-1 57, 58).
As for Cho, Appellants argue it teaches determining a target heart rate
in consideration of a user's current heart rate and a reference heart rate, and
then selecting an audio file having a tempo matching the target heart rate.
See App. Br. 7 (citing Cho i-fi-159, 61, 62). Appellants, however, argue the
table taught by Cho shows the results of selecting music rather than being
used in the process of searching for music of a determined tempo in
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Application 12/693, 159
accordance with the claims. See App. Br. 8 (citing Cho if 87, Fig. 6); Reply
Br. 2-3.
The Examiner's findings on what Sasaki teaches or suggests are in
accord with Appellants' assertions above. See Ans. 5---6. As to Cho,
however, the Examiner finds it teaches or suggests generating a feature
information table in accordance with claim 6. See Ans. 6-7. Specifically,
the Examiner finds Cho teaches (i) tabulating the current heart rate and a
related target heart rate - both of which are extracted biological signal
feature information because they are "about" a measured biological
signal- and (ii) matching the target heart rate to the tempo (i.e., extracted
sound source feature information) of a sound source. See Ans. 6-7 (citing
Cho Fig. 6, iii! 62, 87); see also Ans. 11-13.
Moreover, the Examiner further finds one of ordinary skill in the art
would have found it obvious to combine Cho and Sasaki for (i) generating a
feature information table having biological signal feature information and
sound source feature information and (ii) using extracted biological signal
feature information and sound source feature information to search for and
select a sound source, "for easily managing sound sources and accelerating
the speed of retrieving matched sound sources." See Ans. 7-8.
We are not apprised by Appellants of any error in the Examiner's
findings and reasoning. We agree with the Examiner that the combination
teaches or suggests the disputed feature information table limitations. See
Sasaki if 57, 58; Cho iii! 62, 87, Fig. 6. We find Appellants' argument that
the disputed table shows results rather than being used to search for music
unpersuasive. "A reference may be read for all that it teaches, including
uses beyond its primary purpose." In re Mouttet, 686 F.3d 1322, 1331 (Fed.
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Application 12/693, 159
Cir. 2012) (citing KSR Int'! Co. v. Teleflex Inc., 550 U.S. 398, 418-21
(2007)). Further, Appellants incorrectly focus on Cho and Sasaki
individually instead of addressing the combined teachings of these
references to one of ordinary skill in the art. See In re Merck & Co. Inc.,
800 F.2d 1091, 1097 (Fed. Cir. 1986) ("Non-obviousness cannot be
established by attacking references individually where the rejection is based
upon the teachings of a combination of references").
Lastly, in further support of the Examiner's findings, we find the
language of claim 6 provides that only biological signal feature information
need be stored in the feature information table. See claim 6 ("[D]etecting
similar biological signal feature information to the extracted biological
signal feature information from biological signal feature information stored
in the feature information table") (emphasis added); see also claim 6
(claiming "mapped" sound source feature information rather than sound
source feature information "stored" in the table). In addition, the
"generating" element of claim 6 describes how the table is generated - "by
matching the extracted biological signal feature information to the extracted
sound source feature information corresponding to the plurality of the user
situation information" - but not what information need be included in the
table. See claim 6; see also In re Am. Acad. of Sci. Tech. Ctr., 367 F.3d
1359, 1364 (Fed. Cir. 2004) (providing claims are to be given their broadest
reasonable interpretation consistent with the specification).
(2) Setting the tempo ranges (or each operation mode
Appellants argue Sasaki teaches "a heart rate measurement is only
used to determine a target tempo, ... [and not] in setting the tempo ranges
for each operation mode." App. Br. 6; see also Reply Br. 3 (arguing Sasaki
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Application 12/693, 159
does not teach that the tempo ranges are stored in a table). Appellants then
contend Sasaki therefore fails to teach this disputed element. See id.
The Examiner finds claim 6 does not require using a measured
biological signal in setting tempo ranges for each operation mode. See Ans.
8. In fact, the Examiner finds the claim makes no reference to a tempo
range. See id.
We agree with the Examiner that claim 6 does not require setting
tempo ranges. It is well established that limitations not appearing in the
claims cannot be relied upon for patentability. See In re Self, 671 F .2d 1344,
1348 (CCPA 1982); see also In re Hiniker Co., 150 F.3d 1362, 1369 (Fed.
Cir. 1998) (finding "the name of the game is the claim").
CONCLUSION
Our above findings and reasoning also apply to Appellants' arguments
directed to claim 1. Further, Appellants did not separately argue the
patentability of the dependent claims 2-5 and 7-10. Accordingly, we
sustain the Examiner's rejections of the claims on appeal.
DECISION
We affirm the Examiner's rejection of claims 1-10.
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
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