Ex Parte Roye

Board of Patent Appeals and Interferences

Oct 17, 2011

10690674 (B.P.A.I. Oct. 17, 2011)

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.
10/690,674 10/22/2003 Steven A. Roye 6137
7590 10/17/2011
Walter J. Tencza Jr.
Suite 210
100 Menlo Park
Edison, NJ 08837
EXAMINER
RYAN, PATRICK A
ART UNIT PAPER NUMBER
2427
MAIL DATE DELIVERY MODE
10/17/2011 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 BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte STEVEN A. ROYE
____________

Appeal 2009-014566
Application 10/690,674
Technology Center 2400
____________

Before JEAN R. HOMERE, JOHN A. JEFFERY, and
ANDREW J. DILLON, Administrative Patent Judges.

DILLON, Administrative Patent Judge.

DECISION ON APPEAL
Appeal 2009-014566
Application 10/690,674

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Appellant appeals under 35 U.S.C. § 134(a) from the Examiner’s
rejection of claims 1-26. We have jurisdiction under 35 U.S.C. § 6(b).
We affirm.

STATEMENT OF THE CASE
Appellant’s invention is a method and apparatus for recording,
measuring and calculating the percentage of positive audience response
generated by any entertainment or presentation source involving an
audience. See Abstract.

Claim 1 is illustrative with key disputed limitations emphasized:
1. A method comprising:

recording a first length of time of a first positive audience response of
one or more test subjects to a presentation; and

displaying a first numerical value for the first length of time on a
computer monitor; and

displaying a first alphanumeric heading on the computer monitor
which indicates what the first numerical value refers to.

The Examiner relies on the following as evidence of unpatentability:
Kondo US 2004/0117815 A1 June 17, 2004
(filed June 24, 2003)
Leroy US 5,812,642 Sep. 22, 1998
Eldering US 6,457,010 B1 Sep. 24, 2002

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THE REJECTIONS
1. The Examiner rejected claims 1-4, 7-11, 15, 18, 20-22, and 26
under 35 U.S.C. § 103(a) as unpatentable over Kondo and Leroy.
Ans. 3-11.1
2. The Examiner rejected claims 5, 6, 12-14, 16, 17, 19, and 23-25
under 35 U.S.C. § 103(a) as unpatentable over Kondo, Leroy and
Eldering. Ans. 11-17.
CONTENTIONS
Regarding representative claim 1, the Examiner finds that Kondo
discloses a method for recording a first length of time of a first positive
audience response (characteristic amount 304 of Fig. 25C is voice data
recorded from an audience. When the characteristic amount exceeds the
level of threshold La3 a determination of laughing is estimated, as disclosed
in Paragraph [0124]). The Examiner notes that Kondo discloses that Output
Unit 50 displays the audience response data in a graphical format, but that it
is unclear if a first numerical value for the first length of time and a first
alphanumeric heading identifying the first numerical value are displayed on
the computer monitor. The Examiner cites Leroy, in a similar field of
invention for disclosing the real-time display of audience telephone call
activity regarding a promotional presentation. Ans. 3-4.
Appellant argues that Kondo does not disclose displaying a first
alphanumeric heading on the computer monitor which indicates what the
first numerical value indicates, nor does Kondo demonstrate labeling along
the time axis of the depicted graphs to provide an indication of the duration

1 Throughout this opinion, we refer to the Appeal Brief filed February 10,
2009 and the Examiner’s Answer mailed May 19, 2009.
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of a particular audience state, or the length of time that an audience state
should be saved or displayed. Appellant also argues that Leroy merely
displays information regarding phone calls or monetary pledges and not
positive audience response. Br. 9-12.
The issues before us, then, are as follows:

ISSUES
1. Under § 103, has the Examiner erred in rejecting claims 1-4, 7-11,
15, 18, 20-22, and 26 by finding that Kondo and Leroy collectively would
have taught or suggested (1) recording a first length of time of a first
positive audience response of one or more test subjects to a presentation;
(2) displaying a first numerical value for the first length of time on a
computer monitor; and (3) displaying a first alphanumeric heading on the
computer monitor which indicates what the first numerical value refers to?

2. Under § 103, has the Examiner erred in rejecting claims 5, 6, 12-
14, 16, 17, 19, and 23-25 by finding that Kondo, Leroy, and Eldering
collectively would have taught or suggested the claimed invention?

FINDINGS OF FACT
We find that the following enumerated findings of fact (FF) are
supported by at least a preponderance of the evidence. Ethicon, Inc. v.
Quigg, 849 F.2d 1422, 1427 (Fed. Cir. 1988) (explaining the general
evidentiary standard for proceedings before the Office).
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1. Kondo discloses an audience state estimation system which outputs
an estimated result of an audience state. See Kondo, Abstract.
2. Figure 24A of Kondo is depicted below:

Figure 24A is a graph depicting an estimated result based upon the
characteristic amount. As illustrated, when characteristic amount
301 is larger than reference level Lv1, a state of “beating time with
hands” and of “clapping” is estimated. The horizontal axis is
elapsed time. Kondo, Fig. 24A and ¶[0120].
3. Leroy discloses a system and method for monitoring and analyzing
audience response to a broadcast promotion. See Leroy Abstract.
4. Figure 7 of Leroy is depicted below:
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Figure 7 is a graphic presentation of pledge breaks analyzing
audience response using several parameters plotted against time.
Leroy, col. 6, ll. 63-65.
5. Eldering discloses a subscriber characterization system which
monitors records of time duration that programming is watched,
the volume at which the program is watched, and the category and
sub-category of the programming. See Eldering Abstract.

ANALYSIS
Appellant argues that claims 1-3 and 7-11 should not have been
rejected over Kondo and Leroy since Kondo “does not disclose displaying a
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first numerical value for a first length of time on a computer monitor for a
first positive audience response” and does not disclose “displaying a first
alphanumeric heading on the computer monitor which indicates what the
first numerical value refers to.” Appellant notes that Kondo discloses a time
axis, but argues that there are no labels depicted along that axis permitting
the duration of an audience response to be determined. Br. 9.
Appellant also argues that the display within Leroy regarding phone
calls does not indicate a positive audience response to the program. Br. 11.
The Examiner finds that Kondo discloses graphic representations of
the state of an audience that are depicted along a time axis, and that despite
the absence of express labels, such representations demonstrate “recording a
first length of time of a positive audience response.” Ans. 21. The Examiner
also cites Leroy for an express indication of elapsed time of positive
audience responses.
We find that Kondo teaches presenting a graphic indication of positive
audience response with an indication of the duration of that response. We
find that recording the duration of such response is within the inherent
teaching of Kondo. (FF-1,2).
Consequently, we are therefore not persuaded that the Examiner erred
in rejecting claims 1-3 and 7-11 under § 103.
Appellant argues that claim 4 was improperly rejected over Kondo
and Leroy in view of the fact that Kondo fails to disclose tracking the total
presentation time, and Leroy only tracks telephone calls and pledges, which
Appellant argues are not synonymous with positive audience response. Br.
12-13.
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The Examiner argues that Leroy clearly depicts the recordation of the
total presentation time and notes that Kondo is cited for the feature of
identifying positive audience response. Ans. 25.
We find that Leroy expressly states that it is directed to a system for
monitoring and analyzing audience response (FF3) and that Leroy discloses
tracking the total presentation time, as depicted in Figure 7. (FF4).
We therefore find that the Examiner did not err in his rejection of
claim 4 under § 103 over Kondo and Leroy.
Appellant argues that claims 9 and 10 should not have been rejected
over Kondo and Leroy in view of a perceived failure of the references to
depict recording positive audience responses during specific time intervals.
Br. 13-14.
The Examiner finds that the horizontal time axis of Kondo coupled
with the graphic display of Leroy suggest these claim features. Ans. 19-21.
We agree with the Examiner’s finding and conclude that the Examiner did
not err in rejecting claims 9 and 10 over these references.
Appellant argues that claim 11 was improperly rejected in view of the
failure of the cited references to disclose the determining and display of an
average amount of positive audience response during a presentation. Br. 14-
15.
As noted above, with respect to claim 4, the Examiner finds that
Leroy depicts the display of positive audience response over the entire
duration of a presentation. Ans. 24-25. We concur with the Examiner and
find that the Examiner did not err in rejecting claim 11.
Appellant argues that claim 15 should not have been rejected over
Kondo and Leroy, alleging that the Kondo reference, although depicting a
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horizontal time axis, fails to expressly label that axis with specific numbers.
Appellant further argues that Leroy does not disclose recording a length of
time during which a positive audience response is demonstrated. Br. 15-17.
As noted above with respect to claim 1, the Examiner finds that
Kondo indeed discloses the display of the length of time during which a
positive audience response is noted. Ans. 30.
We find the Examiner’s position persuasive and hold that the
Examiner did not err in rejecting claim 15, and claims 16-19 and 26, which
depend therefrom, which were not separately argued.
Appellant also argues that claims 20-22 were improperly rejected in
view of the failure of the cited references to display specific times for
positive audience responses. Br. 17-18.
For the reasons set forth above, we find the Examiner did not err in
rejecting claims 20-22.
Appellant argues that claim 5 was improperly rejected over Kondo,
Leroy and Eldering, urging that the references fail to show or suggest
determining a ratio of the time of positive audience response to the total
presentation length and displaying that ratio. Br. 18-19.
The Examiner finds that Eldering discloses various probabilistic
techniques for profiling a user’s viewing habits. Ans. 13. We find that the
cited references disclose the determination of the duration of positive
audience response, the duration of a presentation, and various techniques for
analyzing that data (FF5), and we find that a ratio determination is inherent
within such teaching. We therefore find that the Examiner did not err in
rejecting claim 5, and claim 6, which depends therefrom, and which is not
argued separately.
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Similarly, Appellant argues that claims 12 and 13 were improperly
rejected, in view of the failure of the cited references to disclose determining
and displaying the total positive audience responses during specific time
intervals.
For the reasons set forth above with respect to claims 9 and 10, we
find that the Examiner did not err in rejecting claims 12 and 13.
Appellant argues that claim 14 should not have been rejected in view
of the failure of the cited references to disclose the average number of
positive audience responses per minute of presentation.
For the reasons set forth above with respect to claim 11, we find the
Examiner did not err in rejecting claim 14.
The Appellant argues that the Examiner improperly rejected claims
16, 17, and 19 in view of the failure of the cited references to disclose the
display of a ratio of positive audience response time to total presentation
time.
For the reasons set forth above with respect to claim 5, we find the
Examiner did not err in rejecting claim 16, and claims 17 and 19 which
depend therefrom and which are not separately argued.
Finally, Appellant argues that claims 23 and 24 should not have been
rejected in view of the failure of the references to disclose the determination
and display of numerical values for positive audience responses during a
first and second minute of a presentation.
For the reasons set forth above with respect to claims 9 and 10, we
find the Examiner did not err in rejecting claims 23 and 24.

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CONCLUSION
The Examiner did not err in rejecting claims 1-26 under § 103.

ORDER
The Examiner’s decision rejecting claims 1-26 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)(1)(iv).

AFFIRMED

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