Ex parte Patton

Board of Patent Appeals and Interferences

Feb 28, 2001

08608440 (B.P.A.I. Feb. 28, 2001)

Telephonic1
-1-
The opinion in support of the decision being entered
today was not written for publication and is not binding
precedent of the Board.
Paper No. 23
UNITED STATES PATENT AND TRADEMARK OFFICE
________________
BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
________________
Ex parte RICHARD E. PATTON
________________
Appeal No. 1999-2784
Application No. 08/608,440
________________
HEARD: February 15, 20011
________________
Before KRASS, LALL, and BLANKENSHIP, Administrative Patent
Judges.
KRASS, Administrative Patent Judge.
DECISION ON APPEAL
This is a decision on appeal from the final rejection of
claims 1-22, all of the claims pending in the application.
Appeal No. 1999-2784
Application No. 08/608,440
-2-
The invention is directed to a method for analyzing
neurological responses to emotion-induced stimuli. The
preferred embodiment resides in the use of the method in the
field of consumer advertising to determine the effectiveness
of ads. Particular brain wave activity is measured to
determine polar opposite emotions. A correlation is made
between the measured brain waves and emotional states. The
emotions are then graphed and placed in a circle, referred to
as a circumplex of emotions. The emotional steps and changes,
as well as the rate of change of the emotions, are measured
dynamically as the subject undergoes exposure to an audio-
visual presentation.
Representative independent claim 1 is reproduced as
follows:
1. A method of determining the extent of an emotional
response of a test subject to an advertising presentation,
said method comprising preparing a presentation having a time-
varying content and intended to elicit a particular overall
emotional response in an audience to whom viewing said
presentation will ultimately be made, positioning at least one
test subject capable of capable of [sic] undergoing individual
emotional responses each represented by a particular frequency
and intensity in a position to observe said presentation for a
given duration, establishing a path of communication between
said at least one subject and an electroencephalographic brain
wave detector and a brain wave analyzer capable of measuring
an intensity characteristic of brain wave signals of a
Appeal No. 1999-2784
Application No. 08/608,440
-3-
plurality of substantially exact but different frequencies,
each of said frequencies being associated with a predetermined
base emotion, permitting said at least one subject to view
said presentation and recording the absolute values of said
brain wave intensity characteristic at a plurality of
intervals during said duration when said subject is viewing
said presentation, thereby subdividing said duration into a
plurality of individual time segments, thereafter determining
the intensity characteristic changes and intensity
characteristic change rates of said plurality of brain wave
frequencies, using the changes of said intensity
characteristic of each point relative to a preceding point to
establish marginal values for each of said time segments,
creating at least one two-axis graph, said graph having axes
corresponding to two of said base emotions and including a
plurality of coordinate points each representing a pair of the
marginal values taken from a selected emotion scale,
thereafter graphically determining the composite emotional
state of the test subject at each segment of the presentation,
and comparing the achieved emotional response of the test
subject to the response intended to be achieved to determine
whether changes in the content of the presentation are
indicated so as to increase the likelihood that the audience
intended to view the presentation will display the intended
emotional response.
The examiner relies on the following references:
Raviv et al. (Raviv) 4,744,029 May 10, 1988
Trivedi et al. (Trivedi) 4,862,359 Aug. 29, 1989
Duffy Re. 34,015 Aug. 04, 1992
Claims 1-22 stand rejected under 35 U.S.C. 103 as
unpatentable over either one of Trivedi, Duffy or Raviv.
Reference is made to the briefs and answer for the
respective positions of appellant and the examiner.
Appeal No. 1999-2784
Application No. 08/608,440
-4-
OPINION
We reverse.
It is our view that the examiner has not established a
prima facie case of obviousness of the claimed subject matter.
The examiner cites any one of the references to Trivedi,
Duffy and Raviv for a teaching of measuring brain activity but
admits that none of the references deal with “emotional
responses,” as required by the claims. The examiner’s
position, however, is that it is well known that the prior art
measurements are associated with “mental states” and that
“emotional responses” are nothing more than mental states.
Thus, concludes the examiner, no matter what label is affixed
to the mental states being depicted by the measured brain
waves of the prior art, the instant invention and the prior
art are measuring the same thing.
We agree with appellant that the cited references do not
suggest the claimed method for determining the extent of an
emotional response of a test subject.
Appeal No. 1999-2784
Application No. 08/608,440
-5-
While the instant claims are very specific as to
determining emotional responses to an advertising presentation
and that, inter alia, emotional responses are represented by
particular frequencies and intensities of subjects’ brain
activity and that intensity characteristic changes and change
rates of the brain wave frequencies are used to establish
marginal values for each of a plurality of time segments; that
a graph is created with axes corresponding to particular base
emotions; that composite emotional states of the subject at
each segment of a presentation is graphically determined and a
comparison is made between the achieved emotional response and
the intended response wherein changes as to the content of the
presentation are indicative of the likelihood that an intended
audience will display the intended emotional response; the
examiner never comes to grips with these claimed elements by
coordinating the claimed elements with specific portions of
the references’ disclosures. Accordingly, it is difficult to
determine just what the examiner regards as equivalent to
these claimed features in the prior art.
For all the examiner’s argument regarding how “emotional
responses” is nothing more than semantics because the mental
Appeal No. 1999-2784
Application No. 08/608,440
-6-
states measured by the prior art references may be considered
to be “emotional responses,” the examiner apparently ignores
other claim limitations setting forth a specific method by
which the emotional responses are measured and employed for
purposes of tying these emotional responses to the field of an
advertising presentation. Using these emotional responses in
an advertising presentation for the specific purpose of
determining the effectiveness of the advertisements in
eliciting intended responses from subjects is an important
part of independent claims 1, 15, 21 and 22 and the examiner
does not appear to give these limitations much weight.
Clearly, the prior art devices cited by the examiner
measure brain waves but they are concerned with medical
evaluations and brain wave responses to such stimuli as
flashing lights, for example. The examiner has pointed to
nothing in the cited references which reasonably could be
considered an “emotional response.” For example, at least
instant independent claims 15, 20 and 22 recite the
determination of “pleasure and arousal” emotions with the
establishment of a two-axis “pleasure v. arousal graph” in
claim 15. The examiner has pointed to nothing in the cited
Appeal No. 1999-2784
Application No. 08/608,440
-7-
references which would suggest this limitation as the
references are not looking for these emotional states.
The instant claims are directed to eliciting and
determining certain emotional responses and are concerned with
how these responses are to be used. The examiner has pointed
to nothing in the references as to how certain responses
determined by brain activity therein are to be used.
Claim 19 also requires the determination of an emotional
response of a subject to stimuli in the form of a presentation
having at least a time-varying visual content and positioning
the subject to observe the presentation. Rather than having
the subject quiet or in a sleeping mode, the instant invention
requires the subject to actually view some predefined
material, such as a television commercial. The examiner has
not pointed out what, in the applied references, is being
relied on for the teaching of a subject observing this
presentation of time-varying visual content. Additionally,
claim 19 includes the limitation of recording change rates in
intensity components periodically during the presentation and
using the intensity change rate data to construct a graph for
establishing a composite emotional state of the subject to the
Appeal No. 1999-2784
Application No. 08/608,440
-8-
presentation. It is not clear to us what the examiner relies
on in the applied references for the teaching or suggestion of
this limitation.
The examiner’s citation of references showing general
measurement of brain waves, without any specific showing as to
how the claimed elements correspond to those of the
references, especially where the instant claims appear to
recite many elements which are not apparent from the applied
references, does not constitute a prima facie showing of
obviousness of the instant claimed subject matter.
The examiner’s decision rejecting claims 1-22 under
35 U.S.C. 103 is reversed.
REVERSED
ERROL A. KRASS )
Administrative Patent Judge )
)
)
)
)
PARSHOTAM S. LALL ) BOARD OF PATENT
Appeal No. 1999-2784
Application No. 08/608,440
-9-
Administrative Patent Judge ) APPEALS AND
) INTERFERENCES
)
)
)
HOWARD B. BLANKENSHIP )
Administrative Patent Judge )
EK/RWK
VEDDER, PRICE, KAUFMAN & KAMMHOLZ
222 NORTH LASALLE STREET, 24TH FLOOR
CHICAGO, IL 60601-1003