Ex Parte Vallier et al

Patent Trial and Appeal Board

Mar 18, 2013

11513408 (P.T.A.B. Mar. 18, 2013)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
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Ex parte WILLIAM E. VALLIER, STEVEN V. RIMAR, ROBERT LEWIS
D’AVANZO, JR., and MATTHEW J. WYLIE
____________

Appeal 2011-005884
Application 11/513,408
Technology Center 3600
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Before JOSEPH A. FISCHETTI, BIBHU R. MOHANTY, and NINA L.
MEDLOCK, Administrative Patent Judges.

MOHANTY, Administrative Patent Judge.

DECISION ON APPEAL
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STATEMENT OF THE CASE
The Appellants seek our review under 35 U.S.C. § 134 (2002) of the
final rejection of claims 1, 3, 4, 6-11, 13-15, 17, 18, 20-25, and 27-291 which
are all the claims pending in the application. We have jurisdiction under
35 U.S.C. § 6(b) (2002).

SUMMARY OF THE DECISION
We REVERSE.

THE INVENTION
The Appellants’ claimed invention is directed to delivering content to
persons based upon automatically detected demographic data (Spec., para.
[0001]). Claim 1, reproduced below, is representative of the subject matter
on appeal.

1. An electronic system for selectively delivering
multimedia content to persons based upon automatically
detected demographic data relating to one or more of said
persons, said electronic system comprising:
an output delivery unit for delivering multimedia content
to said persons;
a delivery control unit adapted to send control signals to
said output delivery unit to vary multimedia content delivered,
said delivery control unit including a database containing
digital content files and an application for selecting and
delivering said digital content files to said output delivery unit
via said control signals; and
a demographic classification unit for detecting said
persons and assigning demographic classifications thereto, said

1 The Appellants indicate that claims 2, 5, 12, 16, 19, and 26 have been
cancelled. (Br. 5).
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demographic classifications being assigned by a demographic
classification algorithm according to predefined classification
rules; and
wherein said demographic classification unit
sends demographic signals to said delivery control unit
representing said assigned demographic classifications, and said
application selects certain appropriate content files based upon
said received demographic signals and stored data correlating
said content files to predefined demographic classifications,
comprises an electronic image recognition system
utilizing a computerized recognition algorithm to analyze
captured photographs of said persons,
comprises a radio frequency identification (RFID)
detection system adapted to identify RFID-tagged customer
loyalty cards associated with particular persons when ones of
said cards enter a viewing area,
looks up information concerning said ones of said cards
in a customer information database,
compares identification information received from said
image recognition system and said RFID detection system
according to said computerized recognition algorithm,
determines and outputs a measure of certainty for each of
the demographic classifications based on said computerized
recognition algorithm, and
disregards demographic classifications that have a
measure of certainty below a predetermined value.

THE REJECTIONS
The Examiner relies upon the following as evidence in support of the
rejections:
Hind US 2002/0174025 A1 Nov. 21, 2002
Denimarck US 2003/0018522 A1 Jan. 23, 2003

The following rejections are before us for review:
1. Claim 1 is rejected under 35 U.S.C. § 112, second paragraph.
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2. Claims 1, 3, 4, 6-11, 13-15, 17, 18, 20-25, and 27-29 are
rejected under 35 U.S.C. § 103(a) as unpatentable over Hind, Official
Notice, and Denimarck.

FINDINGS OF FACT
We find that the findings of fact used in the Analysis section below
are supported at least by a preponderance of the evidence.2

ANALYSIS
Rejection under 35 U.S.C. § 112, second paragraph
The Examiner has rejected claim 1 under 35 U.S.C. § 112, second
paragraph because it is unclear to which of the three “units” the “electronic
image recognition system” and “radio frequency identification (RFID)
detection system” are tied (Ans. 3). In contrast, the Appellants have argued
that this rejection is improper and that the cited elements are elements of the
“demographic classification unit” (Br. 15, Reply Br. 2).
We agree with the Appellants. The test for definiteness under
35 U.S.C. § 112, second paragraph, is whether “those skilled in the art
would understand what is claimed when the claim is read in light of the
specification.” Orthokinetics, Inc. v. Safety Travel Chairs, Inc., 806 F.2d
1565, 1576 (Fed. Cir. 1986) (citations omitted). Here, it is clear from a plain
reading of claim 1 that both the “electronic image recognition system” and
“radio frequency identification (RFID) detection system” are elements of the
“demographic classification unit” as asserted by the Appellants in the Brief

2 See Ethicon, Inc. v. Quigg, 849 F.2d 1422, 1427 (Fed. Cir. 1988)
(explaining the general evidentiary standard for proceedings before the
Patent Office).
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at page 3. Support for these claim terms is also shown in Figure 1 of the
Specification. For this reason this rejection is not sustained.

Rejection under 35 U.S.C. § 103(a)
The Appellants have argued that the rejection of record of claim 1
under 35 U.S.C. § 103(a) is improper (Br. 16-21, Reply Br. 2-6). In
contrast, the Examiner has determined that this rejection is proper (Ans. 4-8,
11-14).
We agree with the Appellants. Claim 1 requires that the system
demographic classification unit includes both an “electronic image
recognition system” and a “radio frequency identification (RFID) detection
system” and the Examiner correctly points these elements are shown in
Denimarck (para. [0023]) and Hind (para. [0012]), respectively (Ans. 4, 7).
However, the claim also requires that that the system:
compares identification information received from said
image recognition system and said RFID detection system
according to said computerized recognition algorithm,
determines and outputs a measure of certainty for each of
the demographic classifications based on said computerized
recognition algorithm, and
disregards demographic classifications that have a
measure of certainty below a predetermined value. [(Claim 1,
emphasis added).]

The Examiner has determined that the claimed comparison step is shown by
Denimarck at paragraph [0074] but this portion largely only shows that if the
biometric data cannot be verified that then the user has to enter a pin code.
This cited portion of Denimarck fails to show any comparison with any
other type of demographic gathering unit. The Examiner has also taken
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Official Notice that is well known in the art to prioritize targeting strategies
with weights (Ans. 5-6). While we do not disagree that it is well known in
the art to prioritize targeting strategies the claimed combination here
requires much more than that.
Here, when considering the cited prior art and rejection as a whole,
there is no articulated reasoning with some rational underpinning to support
the legal conclusion of obviousness as the prior art references do not show or
suggest the claimed comparison of the information from the image
recognition system and RFID detection system in combination with the other
claimed elements without impermissible hindsight. Again, Denimarck at
paragraph [0074] only compares the biometric data from one source. For this
reason the rejection of claim 1 and its dependent claims is not sustained.
The remaining claims contain similar limitations to those addressed above
and the rejection of these claims is not sustained for these same reasons.

CONCLUSIONS OF LAW
We conclude that Appellants have shown that the Examiner erred in
rejecting the claims as listed in the Rejections section above.

DECISION
The Examiner’s rejection of claims 1, 3, 4, 6-11, 13-15, 17, 18, 20-25,
and 27-29 is reversed.

REVERSED

hh
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