Ex Parte Theisen et al

Patent Trial and Appeal Board

Dec 9, 2016

12603012 (P.T.A.B. Dec. 9, 2016)

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.
12/603,012 10/21/2009 Kacie Alane Theisen 81182925 5731
28395 7590 12/13/2016
RROOKS KTTSHMAN P C /FfTET EXAMINER
1000 TOWN CENTER DAGER, JONATHAN M
22ND FLOOR
SOUTHFIELD, MI 48075-1238 ART UNIT PAPER NUMBER
3663
NOTIFICATION DATE DELIVERY MODE
12/13/2016 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):
docketing @brookskushman.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte KACIE ALANE THEISEN,
PERRY ROBINSON MACNEILLE, ERICA KLAMPFL, and
OLEG YURIEVITCH GUSIKHIN
Appeal 2014-009307
Application 12/603,012
Technology Center 3600
Before JENNIFER D. BAHR, GEORGE R. HOSKINS, and
ARTHUR M. PESLAK, Administrative Patent Judges.
BAHR, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Kacie Alane Theisen et al. (Appellants) appeal under 35 U.S.C.
§ 134(a) from the Examiner’s decision rejecting claims 1—6, 8—12, and 14—
19, which are all of the pending claims. We have jurisdiction under
35 U.S.C. § 6(b).
We AFFIRM.
Appeal 2014-009307
Application 12/603,012
THE CLAIMED SUBJECT MATTER
Claim 1, reproduced below, is illustrative of the claimed subject
matter.
1. An emotive advisory system for use by one or more occupants
of an automotive vehicle, the system comprising:
a computer configured to
receive input indicative of an operating state of the
vehicle,
determine at least one of a need to provide owner’s
manual information to an occupant based on the operating
state of the vehicle and a request to provide owner’s
manual information to the occupant,
generate (i) data representing an avatar having an
appearance and (ii) data representing a spoken statement
for the avatar, the appearance and the spoken
statement conveying a simulated emotional state of the
avatar to the occupant, and the spoken statement providing
owner’s manual information to the occupant in spoken
dialog based on at least one of the need and the request,
output the data representing the avatar for visual
display, and
output the data representing the statement for the
avatar for audio play.
REJECTIONS
I. Claims 1—6, 9—12, and 14—18 stand rejected under 35 U.S.C.
§ 103(a) as unpatentable over Evans (US 2009/0144622 Al, pub.
June 4, 2009) and Filev (US 2008/0269958 Al, pub. Oct. 30,
2008).
II. Claims 8 and 19 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Evans, Filev, and Luskin (US 2005/0131595 Al,
pub. June 16, 2005).
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DISCUSSION
Rejection I
In contesting the rejection of claims 2—6, 9-12, and 14—18, Appellants
rely on their arguments presented for claim 1. Appeal Br. 4. We select
claim 1 as representative of claims 1—6, 9-12, and 14—18 subject to this
rejection, and claims 2—6, 9-12, and 14—18 stand or fall with claim 1. See
37C.F.R. §41.37(c)(l)(iv).
The Examiner finds that Evans discloses a system substantially as
claimed in claim 1, including generating and outputting “data representative
of an avatar having an appearance and data representing a statement from
the avatar,” with the exception that “Evans is silent as to the appearance and
the spoken statement from the avatar conveying a simulated emotional state
of the avatar to the occupant.” Ans. 3. The Examiner finds, however, that
“Filev, in a similar invention in the same field of endeavor, teaches that in
response to the state of the vehicle and/or driver, the appearance and the
spoken statement of the avatar conveys a simulated emotional state of the
avatar to the occupant.” Id. (citing Filev Tflf 32, 64, 122, 123, 142). The
Examiner determines that it would have been obvious “to combine the avatar
of Evans with the avatar features of Filev to achieve the predictable result of
altering the appearance and voice of the avatar to convey the simulated
emotional state of the avatar to the occupant.” Id. at 3^4. The Examiner
states that “[djoing so would immediately alert the driver as to an urgent
condition of the vehicle while traveling.” Final Act. 5. Moreover, according
to the Examiner, “[djoing so would not only provide a further visual alert to
the driver in an urgent condition such as harsh handling, but would further
provide a calming influence to a stressed driver.” Ans. 4.
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Application 12/603,012
Appellants argue that “[t]he [EJxaminer’s reasoning suggests that
Evans cannot immediately alert the driver as to an urgent condition of the
vehicle while travelling—which is not true” and that “the [EJxaminer creates
a problem within the context of Evans that does not otherwise exist for the
sole purpose of finding reason to combine the teachings of the references.”
Appeal Br. 3. Appellants assert that Evans’s ‘“LOW TIRE PRESSURE
ALERT’ is an example of [the type of] simple and direct notification” that a
driver needs in urgent situations, and that, “[i]n contrast, the emotion
expressed by Filev’s avatar is designed to prompt a driver to ask questions
(as opposed to quickly convey information).” Reply Br. 2. As such,
Appellants contend that the “LOW TIRE PRESSURE ALERT” warning
indicium of Evans “is more effective than an avatar’s emotion.” Id. Thus,
Appellants urge that the Examiner’s articulated “reason to combine the
teachings of the references lack[s] merit.” Id.
The Examiner maintains that one would have been motivated to
“augment[] the avatar of Evans with the teachings of Filev” “to better alert
the driver as to an urgent condition, such as harsh driving of the vehicle as
outlined in [paragraph 33] of Filev, but also to help reduce the driver’s
tension in stressful situations by adapting the avatar’s appearance and
spoken statement to a more soothing output.” Ans. 5; see Filev 132
(disclosing that when outputs from head sensors indicate that the occupant is
angry, “the avatar may be rendered in blue color tones with a concerned
facial expression and ask in a calm voice ‘Is something bothering you?”’),
133 (describing the avatar appearing to become frustrated upon the system
sensing the vehicle experiencing “frequent acceleration and deceleration or
otherwise harsh handling” and the avatar informing the occupant that this
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Appeal 2014-009307
Application 12/603,012
driving is hurting the vehicle’s fuel efficiency and requesting the occupant to
cut down on frequent acceleration and deceleration).
Appellants’ arguments are not persuasive. First, Appellants’
contention that the “LOW TIRE PRESSURE ALERT” indicium of Evans is
more effective than an avatar with an emotion-simulating appearance and
spoken statement amounts to unsupported attorney argument, and therefore,
is entitled to little, if any, weight. In re Geisler, 116 F.3d 1465, 1470 (Fed.
Cir. 1997). Appellants provide no evidence or persuasive technical
reasoning to show that a person having ordinary skill in the art would doubt
or disregard Filev’s teaching that “the EAS . . . may use simulated emotion
to convey the urgency of what is being said, to appeal to the occupant’s
emotions, to convey the state of the vehicle systems . . ., etc.” Filev 1121.
Moreover, even assuming that an alert indication such as the “LOW TIRE
PRESSURE ALERT” indicium of Evans might be more effective in alerting
some persons in some situations as to the urgency of a situation, the
combination of the avatar of Evans1 with the emotion-simulating avatar
features taught by Filev as proposed by the Examiner (Ans. 3) does not
require the elimination of such alert indicia.
Appellants also argue that the Examiner’s “comments regarding
predictability completely ignore the complexity associated with” Evans and
Filev. Appeal Br. 3. According to Appellants, “Filev involves a complexity
of the highest degree: altering the appearance and voice of an avatar to
convey a simulated emotional (human) state responsive to a driver.” Id. at 4.
1 See Evans ]Hf 34, 35 (disclosing “the virtual assistant may include a
computer-simulated display of a human” or “an interactive cartoon
character” and “may provide mechanical problem information”).
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Thus, Appellants contend that “one of ordinary skill would not have thought
that the teachings of the references could have been combined, a fortiori,
combined [szc] to achieve a predictable result.” Id. Appellants’ argument
regarding the complexity of Filev fails to take full account of the level of
skill in the art evidenced by Filev. Aside from a bald argument that one of
ordinary skill in the art would not have thought the features of Filev could be
combined with the system of Evans to achieve a predictable result because
Filev’s system presents complexity, Appellants do not identify any reason
why such a combination would have been uniquely challenging or been
beyond the technical grasp of a person having ordinary skill in the art, as
evidenced by the teachings of Evans and Filev.
For the above reasons, Appellants fail to apprise us of error in the
rejection of claim 1. Accordingly, we sustain the rejection of claim 1 and
claims 2—6, 9-12, and 14—18, which fall with claim 1, under 35 U.S.C.
§ 103(a) as unpatentable over Evans and Filev.
Rejection II
In contesting the rejection of claims 8 and 19, Appellants do not
present any separate arguments for the patentability of these claims, aside
from their dependence from claims 1 and 9, respectively. Appeal Br. 4.
Thus, for the reasons set forth above with regard to the rejection of claims 1
and 9, we also sustain the rejection of claims 8 and 19 under 35 U.S.C.
§ 103(a) as unpatentable over Evans, Filev, and Luskin.
DECISION
The Examiner’s decision rejecting claims 1—6, 8—12, and 14—19 is
AFFIRMED.
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Application 12/603,012
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)(l)(iv).
AFFIRMED
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