Ex Parte Stut et al

Patent Trial and Appeal Board

Mar 14, 2018

12594200 (P.T.A.B. Mar. 14, 2018)

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.
12/594,200 10/01/2009 Wilhelmus Johannes Joseph Stut 2007P00260WOUS 2007
24737 7590 03/16/2018
PTTTT TPS TNTFT T FfTTTAT PROPFRTY fr STANDARDS
EXAMINER
465 Columbus Avenue EGLOFF, PETER RICHARD
Suite 340
Valhalla, NY 10595 ART UNIT PAPER NUMBER
3715
NOTIFICATION DATE DELIVERY MODE
03/16/2018 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):
patti. demichele @ Philips, com
marianne. fox @ philips, com
katelyn.mulroy @philips .com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte WILHELMUS JOHANNES JOSEPH STUT,
PETRONELLA HENDRIKA PELGRIM,
PRIVENDER KAUR SAINI, RICHARD VDOVJAK,
JOANNE HENRIETTE MONIQUE WESTERINK,
EVERT JAN VAN LOENEN, and FRANK WARTENA
Appeal 2017-001058
Application 12/594,200
Technology Center 3700
Before ANTON W. FETTING, CYNTHIA L. MURPHY, and
TARA L. HUTCHINGS, Administrative Patent Judges.
MURPHY, Administrative Patent Judge.
DECISION ON APPEAL
The Appellants1 appeal under 35 U.S.C. § 134 from the Examiner’s
rejection of claims 1, 4, 5, and 7—17. We have jurisdiction over this appeal
under 35 U.S.C. § 6(b).
We AFFIRM.
1 The Appellants identify the real party in interest as “Koninklijke Philips
N.V.” (Appeal Br. 2.)
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Application 12/594,200
STATEMENT OF THE CASE
According to the Appellants, “[t]he present invention relates to a
system, method and software for determining a stress level of a person.”
(Spec. 1,11. 3—4.)
Illustrative Claim
1. A computer system for determining a stress level of a
person based on a performance of the person in a game or
puzzle, wherein the computer system is configured to:
in a calibration phase, said calibration phase being
performed at at least one known time:
receive, as an input a physiological parameter of
the person, wherein the physiological parameter is
obtained using a sensor in contact with the person; and
execute the steps of:
identifying a measured stress level of the
person using the physiological parameter obtained
using the sensor in contact with the person;
measuring the performance of the person in
one of a game or a puzzle based on data provided
by the at least one sensor;
relating the measured performance of the
person with the measured stress level of the
person, wherein the measured performance related
to the measured stress level of the person is
measured over a known time period;
storing information linking the related
measured performance to the inputted perceived
level of stress of the person when playing the game
or puzzle for each of said at least one time; and
identifying at least one time slot in which
the measured stress level of the person is
consistent across multiple days, and
in an operational phase, said operational phase being
performed at a time corresponding to the at least one time slot:
execute the steps of:
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measuring the performance of the person by
repeating the one of the game or the puzzle based
on data provided by said at least one sensor,
determining an operational level of stress of
the person by comparing the measured
performance of the person by the repeated playing
of the game or the puzzle over said known time
period to the data linking the related measured
performance to the inputted perceived level of
stress, stored in the calibration phase;
determining whether said determined
operational level of stress is high; and
changing said one of the game or puzzle to a
different one of a game and a puzzle when said
determined operational level of stress is
determined to be high, wherein performance in
said changed one of the game or puzzle is to be
more relaxing than the one of the game or puzzle
that is used for stress determination.
Rejection
The Examiner rejects claims 1, 4, 5, and 7—17 under 35 U.S.C. § 101
as being directed to a judicial exception without significantly more.
ANALYSIS
The Examiner determines that the claims on appeal are directed to “an
abstract idea,” and the Examiner determines that “[t]he claims do not include
additional elements that are sufficient to amount to significantly more” than
this abstract idea. (Final Action 3.) More succinctly, the Examiner
concludes that the claims on appeal do not survive the two-step Alice test.2
2 The Alice test entails two steps for distinguishing between an “abstract
idea[]” and a “patent-eligible application[]” of an abstract idea. Alice Corp.
Pty. Ltd. v. CLS Banklnt’l, 134 S. Ct. 2347, 2355 (2014). The first step of the
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We have carefully considered the Appellants’ arguments regarding the
incorrectness of this conclusion (see Appeal Br. 12—22; Reply Br. 3—11), but
we are not swayed thereby. We are not swayed because, as discussed below,
when we apply the two-step Alice test to the claims on appeal, we reach the
same conclusion as the Examiner, namely that they do not pass muster under
35 U.S.C. § 101.
Claims 1, 14, 15, 16, and 17 are the independent claims on appeal,
with the rest of the claims on appeal (i.e., claims 4, 5, and 7—13) depending
from independent claim 1. (See Appeal Br., Claims App.) Independent
claim 1 recites a “computer system for determining a stress level of a
person based on a performance of the person in a game or puzzle.” (Id.)
Independent claim 14 recites a “method” comprising steps for likewise
determining a person’s stress level based on his or her performance in a
game or puzzle. (Id.) Independent claims 15, 16, and 17 recite “[a]
computer program,” or a “medium carrying a computer program” for the
execution of similar steps. (Id.)
In other words, the Appellants seek to determine a person’s stress
level by relying upon “game performance” as an “analogue for stress level.”
(Appeal Br. 6—7.) To this end, the independent claims recite steps for
execution “in a calibration phase” and steps for execution “in an operational
phase.” The calibration-phase steps “build[] up a table linking game
performance scores and stress levels” for a person and the operational-phase
Alice test is to determine whether the claims at issue are “directed to” an
abstract idea. Id. If so, the inquiry proceeds to the second step of the Alice
test where the elements of the claims are considered “individually and ‘as an
ordered combination’” to determine whether there are additional elements that
“‘transform the nature of the claim’ into a patent-eligible application.” Id.
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steps use this rubric “to relate the performance of this person in a game to
his/her calculated average score for each experienced stress level.” (Spec. 6,
11. 18—22.) “For example, the person reaches an average score of 800 points
in [a] ‘no stress’ situation, 600 points at ‘medium stress’, and 400 points at
‘high stress.’” {Id. at 5,11. 23—25.)
More specifically, in the calibration phase, “the person is requested to
indicate the amount of stress experienced before starting to play the game,”
“the person plays the game,” and “the game performance or score is
determined.” (Spec. 5,11. 28—29; 6,11. 1—2.) “[T]he measured performance
is linked to the stress level that the person indicated” and “both these
parameters are stored.” {Id. at 6,11. 15—16.) Thereafter, in the operational
phase, “the game is played by the person,” “the person’s performance is
determined,” and it is determined if this performance “corresponds to
medium or high stress.” {Id. at 6,11. 25—28.)
Exemplary results of the Appellants’ calibration-phase steps and
operational-phase steps are diagrammed in Figure 3, reproduced below.
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In this drawing, three rectangular areas 310, 320, and 330 depict the stress
levels “calibrated” in the calibration phase, and eight dots depict scores “that
were measured in the operational phase, i.e. after the system was calibrated.”
(Spec. 7,11. 2-3.)
More particularly, the upper rectangular area 310 “corresponds to
scores that were measured during the calibration period when the person
indicated that he/she had no stress” (e.g., scores in the 800-point range), the
middle rectangular area 320 “corresponds to scores that were been measured
during the calibration period when the person indicated that he/she had
medium stress” (e.g., scores in the 600-point range), and the lower
rectangular area 330 “corresponds to scores that were measured during the
calibration period when the person indicated that he/she had high stress”
(e.g., scores in the 400 point range). (Spec. 6,11. 31—34, 7,11. 1—2.) The four
score-depicting dots in the upper rectangular area 310 (e.g., scores in the
800-point range) “indicate that the person had no stress at these moments,”
and the four score-depicting dots in the lower rectangular area 330 (e.g.,
scores in the 400-point range) “suggest that the person had high stress.” {Id.
at 7,11. 3-5.)
With the data diagrammed in Figure 3 in mind, we apply the two-step
Alice test to the claims on appeal.
As for the first step of the Alice test, we agree with the Examiner that
the independent claims on appeal fall under the information-based category
of abstract ideas. (See Answer 4.) The claims recite identifying, measuring
(e.g., scoring), relating, and storing steps in the above-described “calibration
phase,” and further measuring (e.g., scoring) and determining steps in the
above-described “operational phase.” (See Appeal Br., Claims App.) More
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concisely, the claimed “calibration phase” is accomplished primarily, if not
solely, by data-handling steps, and the claimed “operational phase” is
likewise accomplished primarily, if not solely, by data-handling steps.
As for the second step of the Alice test, we agree with the Examiner
that the additional elements recited in the claims are only “generic”
components performing “generic” functions. (Final Action 3.) We note that
the Appellants’ “exemplary computer system 400” is described as simply as
having “a processor 410, a memory 420, a display 430, an input means 440,
which may be a keyboard and a mouse, and a communication means 450.”
(Spec. 9,11. 10-12, see also Fig. 4.) Also, “[a]ny type of game may be used
in the system according to the present invention.” {Id. at 7,11. 31—32.)3
The Appellants premise many of their arguments on the “cross-metric
correlation” between game scores and stress levels. For example, the
Appellants assert that the claims on appeal “relate the outcome of [game]
performance to a conclusion about a completely different metric (stress
level)” and this conclusion is reached “based on cross-metric correlations
generated in the calibration phase.” (Appeal Br. 18.) The problem with this
3 As discussed further below, the claims do recite that data is “obtained
using a sensor” (Appeal Br., Claims App.), however, the Specification
merely states that “suitable sensors” are used to measure a stress-indicative
parameter “in a known way.” (Spec. 5,11. 31—35.)
As for the ordered combination of the computer components, “the processor
410 executes instructions stored in the memory 420,” “[t]he input means 440
are used to control the game,” “[t]he communication means 450 can be used
for exchanging information with external systems (e.g. for adding new
games),” and “[t]he display 430 is used to show the game to the person, to
inform the person about his/her game performance.” (Spec. 9,11. 12—18.)
Also, the system is “provided with or connected to suitable sensors.” {Id.
at 5,11. 33-34.)
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approach is that the Appellants’ “cross-metric correlation” is achieved
purely by collecting data and compiling it to create a rubric table and/or the
rectangular areas shown in Figure 3.
As noted by the Examiner, (see Answer 4) Electric Power Group,
LLC v. Alstom S.A., 830 F. 3d 1350 (Fed. Cir. 2016) provides apropos
precedent in this regard. In Electric Power, the claims were drawn to
“systems and methods for performing real-time performance monitoring of
an electric power grid” and “a large portion of the lengthy claims is devoted
to enumerating types of information and information sources available
within the power-grid environment.” (Id. at 1355.) Although the
information at issue was limited to the particular technological environment
of power-grid monitoring, this did not “change its character as information.”
(Id. at 1353.) Also, “limiting the claims to the particular technological
environment of power-grid monitoring is, without more,” was “insufficient
to transform them into patent-eligible applications of the abstract idea at
their core.” (Id. at 1354.)
The Appellants also assert that “[i]t cannot be said that humans
conventionally rely” on game performance “as an analogue for stress level.”
(Reply Br. 6—7.) Along this same line of thinking, the Appellants contend
that their “calibration phase offers a technological solution to translate
parameters that the computer can assess into a stress level assessment,
thereby enabling the device to perform the stress management.” (Reply
Br. 6.) If the Appellants are alleging that they “invented” the relationship
between game scores and stress levels, the Specification seems to say
otherwise. (See Spec. 8,11. 5—34, 9,11. 1—5.)
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Moreover, we would consider the recognition of this relationship to be
a “discovery” of a law of nature, as the touted correlation is a consequence
of how stress effects the game-playing ability of a person — an entirely
natural process.4 We note that the “measuring” limitations recited in the
claims do not call for any special tools, techniques, or tactics; and the
“measuring” schemes listed in the Specification do not ring any thought-
provoking bells. (Spec. 6,11. 5—10.)
The Appellants also advance arguments premised upon the recital of a
“sensor” in the independent claims. (See Appeal Br. 19-20.) As indicated
above, a step in the calibration phase requires an input indicative of the
person’s pre-game-playing stress level (see Spec. 5,11. 28—29) and the
claims on appeal recite that this data is “obtained using a sensor” (Appeal
Br., Claims App.). Thus, according to the Appellants, “the present claims
provide a system that acts in concert with a sensor” and a technological
improvement is achieved by “using the user’s actual physiological
parameters.'1'’ (Id. at 20.)
The problem with the Appellants’ position on the sensor is that the
Specification casts neither it nor the physiological parameters obtained
thereby in starring roles for facilitation of the Appellants’ stress test. As
indicated above, the independent claims recite that the data obtained by the
sensor is used to identify the pre-game stress level of the person. (See
Appeal Br., Claims App.) But the Specification states that this stress-
4 See e.g., Mayo Collaborative Services v. Prometheus Laboratories, Inc.,
132 S.Ct. 1289, 1297 (2012) (The claims set forth laws of nature—namely,
relationships between concentrations of certain metabolites in the blood and
the likelihood that a dosage of a thiopurine drug will prove ineffective or
cause harm).
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identifying step is “preferably” done in “a very easy way without the need of
additional equipment” by prompting the person “to indicate if he/she has no
stress, medium stress, or high stress.” (Spec. 3,11. 12—14; 5,11. 29-30). The
Specification does not implicate that a stress-level-identifying step involving
a sensor is superior to, or even on equal footing with, a stress-level-
identifying step involving the person’s subjective evaluation of his or her
stress level. (See id., at 3,11. 15—19.)
In any event, the Specification does not implicate that test results
would be enhanced, or even altered, by the use of a sensor instead of a
person’s subjective evaluation. By the same token, the Specification
provides no insight into how or why sensor interaction, sensitivity, and/or
accuracy would be improved thanks to other steps in the Appellants’ stress-
test. We agree, therefore, with the Examiner that “[t]he claims do not
represent an improvement in the functioning of the sensor.” (Answer 5.)
The Appellants additionally advance arguments premised upon claim
language enumerating advantageous test-taking features, such as “the
identification of time slots where the measured stress level is generally
consistent from day to day, so that these time slots may be used for testing
during the operational phase.” (Appeal Br. 21.) We see no reason on the
record to doubt the Appellants’ assertion that this “improve[s] the quality of
readings during the operational phase.” (Id.) However, the improvements
called out by the Appellants would seem to transcend all testing practices,
regardless of whether they are performed manually with pencil and paper or
automatically with a computer. Moreover, the concept of collecting
comparative information during consistent time slots would seem to
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encompass all data-collection procedures, notwithstanding the content or
source of the information.
The Appellants further advance arguments premised upon the claims
on appeal being akin to those considered by the Federal Circuit in McRO,
Inc. v. Bandai Namco Games America Inc., 837 F.3d 1299 (Fed. Cir. 2016).
(See Reply Br. 3—10.) In McRO, the claims at issue related to an animation
method in which the data being manipulated included “a first set of rules that
define output morph weight set stream as a function of phoneme sequence
and time of said phoneme sequence,” “a timed data file of phonemes having
a plurality of sub-sequences,” “an intermediate stream of output morph
weight sets,” “a plurality of transition parameters between two adjacent
morph weight sets,” and “a final stream of output morph weight sets at a
desired frame rate.” McRO at 1307—1308. As such, we struggle to draw a
comparison, much less a parallel, between the claims in McRO and those at
hand.
Inasmuch as the Appellants’ table constitutes a “rule set,” to say this
table’s compilation would not invoke the inventive programming prevalent
in McRO would be an understatement. The straightforwardness of the
claimed manipulation of data is demonstrated by that diagrammed in the
Appellants’ Figure 3. Moreover, in McRO, the claimed process rendered
“information into a specific format that [was] then used and applied to create
desired results: a sequence of synchronized, animated characters.” McRO
at 1315. Here, any automation does not go beyond merely crunching and
comparing data to determine whether the person’s stress is high and, if so,
changing to an easier game or puzzle.
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Accordingly, we reach the same conclusion as the Examiner that the
independent claims on appeal are directed to a judicial exception without
significantly more. Although the Appellants do not argue the dependent
claims separately from the independent claims (see Appeal Br. 22), we
nonetheless note that they recite limitations about the timing of data-
handling steps (dependent claims 5, 10, and 11), insignificant post-solution
activity (dependent claims 8 and 9), and/or the specific content or source of
data (dependent claims 12 and 13); and these limitations do little to amplify
the claimed concept beyond an abstract idea.
Thus, we sustain the Examiner’s rejection of claims 1, 4, 5, and 7—17
under 35 U.S.C. § 101.
DECISION
We AFFIRM the Examiner’s rejection of claims 1, 4, 5, and 7—17.
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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