Ex Parte Pauws et al

Patent Trial and Appeal Board

Feb 28, 2013

11815886 (P.T.A.B. Feb. 28, 2013)

UNITED STATES PATENT AND TRADEMARK OFFICE
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BEFORE THE PATENT TRIAL AND APPEAL BOARD
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Ex parte STEFFEN CLARENCE PAUWS, FABIO VIGNOLI,
and GERTJAN LEENDERT WIJNALDA
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Appeal 2010-009063
Application 11/815,886
Technology Center 3700
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Before: JOHN C. KERINS, STEFAN STAICOVICI, and
CHARLES N. GREENHUT, Administrative Patent Judges.

GREENHUT, Administrative Patent Judge.

DECISION ON APPEAL

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STATEMENT OF THE CASE
Appellants appeal under 35 U.S.C. § 134 from a rejection of claims 1-
9. App. Br. 2. We have jurisdiction under 35 U.S.C. § 6(b).
We affirm.
The claims are directed to an electronic device that controls, for
example, an audio signal to motivate or relax a user to reach a target pace or
heart rate. Spec. p. 1, l. 24 – p. 2, l. 15. In particular, the audio signal may be
music with a tempo that is selected based on the pace and physical state
(e.g., heart rate) of the user. Spec. p. 11, l. 21 – p. 12, l. 10. Claim 1,
reproduced below, is illustrative of the claimed subject matter:
1. An electronic device comprising electronic circuitry, the
electronic circuitry being operative to:
select a human perceptual signal in dependency of a pace
of a person;
adapt the human perceptual signal in dependency of a
physical state of the person, an adaptation being limited to a
certain maximum; and
reproduce the human perceptual signal.

REFERENCES
The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
McKinney
Watterson
WO 2004/072767 A2
US 2002/0022551 A1
Aug. 26, 2004
Feb. 21, 2002

REJECTIONS
Claims 1-2 and 4-9 stand rejected under 35 U.S.C. § 102(e) as being
anticipated by McKinney. Ans. 4.
Claim 3 stands rejected under 35 U.S.C. § 103(a) as being
unpatentable over McKinney and Watterson. Ans. 7.
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OPINION
A. 35 U.S.C. § 102(e) rejection of Claims 1, 2 and 4-9 as
anticipated by McKinney

McKinney describes an audio reproduction device that plays music
with a selected tempo. McKinney p. 6, ll. 8-12. The device has different
strategies for selecting a tempo of the music, and the Examiner and
Appellants identify two of them as pertinent to Claim 1. One of the tempo
selection strategies is described as based on the runners pace. McKinney p.
6, ll. 20-27; App. Br. 4, second paragraph, ll. 1-2; Ans. 4-5; Reply Br. 4,
second full paragraph. An alternative tempo selection strategy is described
as based on a desired training level or heart rate. McKinney p. 6, ll. 28-34;
App. Br. 4, second paragraph, ll. 3-5; Ans. 5, 9; Reply Br. 4, last paragraph.
Appellants correctly argue that the first tempo selection strategy of
McKinney at page 6, lines 20-27 does not describe a signal “in dependency
on a physical state of a person” – e.g., a heart rate. Reply Br. 4, last full
paragraph. Accordingly, we confine our discussion to the alternative tempo
selection strategy based on a desired training level.
The Examiner found that McKinney describes a system that adapts a
human perceptual signal (music with a particular tempo) in dependency of a
physical state (heart rate) and reproduces the human perceptual signal as
required by the second and third limitations of claim 1. Ans. 9. Appellants
do not dispute, with regard to the “alternative tempo selection strategy,” that
heart rate of the exercising user is an input to the tempo derivation unit. App.
Br. 4. Appellants assert that this alternative tempo selection strategy of
McKinney, which uses heart rate as an input, does not “describe calculating
a tempo based upon both the measured runner’s pace and the heart rate of
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the user,” which Appellants apparently believe is required by the
combination of the first and second limitations of claim 1. App. Br. 4,
second paragraph.
This selection strategy is described at page 6, lines 28-34 of
McKinney, which reads:
In an alternative tempo selection strategy, a desired
training level can be set. E.g.[,] a heart rate meter 132 on a step
machine in a fitness center may be transmitting the heart rate of
a user exercising to the tempo derivation unit 103. A desired
heart rate is set on the step machine. As long as the actual heart
rate of the user is below the desired heart rate, for a predefined
interval of time to take into account adaptations in the heart rate
of the user to increased exercise load conditions, fast music is
played. The user can then fasten his step according to the output
tempo of the music.
Turning to the language of claim 1, there is no dispute that the device
of McKinney selects a human perceptible signal (music), adapts it based on
a physical state—heart rate, and reproduces it. The issue in dispute is
whether the tempo selection of McKinney is “in dependency of a pace of a
person.”
McKinney does not measure the actual pace of a user in this
embodiment. However, there does not appear to be any language in claim 1
requiring such a measurement. McKinney describes playing fast music,
where the user is intended to match (“fasten”) his pace (“step”) to the output
tempo. Implicit in this description (the complement of “as long as the actual
heart rate is below” being “when the heart rate is not below”) is that if the
heart rate later increases, or if no change in heart rate is desired, non-fast
music is then played, and the user matches his pace to the slower tempo,
reducing or maintaining the exercise load conditions. While the actual pace
may not be measured in this embodiment of McKinney, it is presumed to be
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adequate or too slow based on the heart rate. See Ans. 10. The circuitry in
the alternative selection strategy of McKinney on page 6, lines 28-34
continuously selects or adapts the music tempo based on heart rate and the
desired or intended pace, or change in pace, of the user. This selection of
music is therefore “in dependency of a pace of a person.”
In response to the Examiner’s Answer, Appellants discuss both
selection strategies of McKinney under the heading “McKinney Does Not
Disclose Or Suggest Adapt The Human Perceptual Signal In Dependency Of
A Physical State Of The Person.” Reply Br. 4-5. In particular, Appellants
argue that the selection of fast music at McKinney page 6, lines 28-34 is
based on a selection of a desired heart rate rather than being adjusted to an
actual heart rate. Reply Br. 5, first full paragraph. This argument is
unpersuasive with regard to the alternative tempo selection strategy. While
Appellants characterize McKinney as playing fast music “if” (Reply Br. 5, l.
11) the measured heart rate is lower than the desired heart rate, McKinney
actually selects fast music “[a]s long as” (McKinney p. 6, l. 31) the actual
heart rate is below the desired rate. This implies following with slower
music once the actual heart rate increases to the desired level. The passage
of McKinney quoted above is selecting fast or other music based on a
difference between the actual heart rate measured, for example, by a heart
rate meter 132, and the desired heart rate. Since McKinney does not play
“fast” music when the actual heart rate is at the desired heart rate, the actual
heart rate (a “physical state of the person”) is also an input to the tempo of
the music.
We therefore affirm the rejection of claim 1.
Claims 2 and 4-7 are not argued separately, and claims 8 and 9 are
said to distinguish over McKinney for the same reasons as claim 1. App. Br.
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5.1 Accordingly, we affirm the rejection of claims 2 and 4-9 for the reasons
given above with respect to claim 1.

B. 35 U.S.C. § 103(a) rejection of claim 3 as being unpatentable over
McKinney and Watterson

Appellants do not separately argue for the features of claim 3. Rather,
claim 3 is said to be allowable for the same reasons as claim 1. App. Br. 6,
last paragraph. As we have affirmed the rejection of claim 1, we likewise
affirm the rejection for claim 3.

DECISION
The Examiner’s rejection of claims 1-9 is affirmed.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 1.136(a)(1)(iv).

AFFIRMED

hh

1 Neither Appellants nor the Examiner suggest that recitation in the form of a
method has any influence on the issues raised by Appellants in this appeal.