Ex Parte White et al

Patent Trial and Appeal Board

Jul 31, 2017

13484442 (P.T.A.B. Jul. 31, 2017)

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.
13/484,442 05/31/2012 Sean M. White 800.0938.U1 (US) 3115
10948 7590 08/02/2017
Harrington & Smith, Attorneys At Law, LLC
4 Research Drive, Suite 202
Shelton, CT 06484
EXAMINER
PICHLER, MARIN
ART UNIT PAPER NUMBER
2872
NOTIFICATION DATE DELIVERY MODE
08/02/2017 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):
USPTO@hspatent.com
Nokia. IPR @ nokia. com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte SEAN M. WHITE, DAVID H. NGUYEN,
KENT M. LYONS, and DANIEL L. ASHBROOK
Appeal 2016-005012
Application 13/484,442
Technology Center 2800
Before PETER F. KRATZ, JAMES C. HOUSEL, and
CHRISTOPHER L. CRUMB LEY, Administrative Patent Judges.
HOUSEL, Administrative Patent Judge.
DECISION ON APPEAL
Pursuant to 35 U.S.C. § 134(a), Appellants1 appeal from the
Examiner’s decision rejecting claims 1—18, 21, and 22. We have jurisdiction
over the appeal under 35 U.S.C. § 6(b).
We REVERSE.2
1 According to Appellants, the real party in interest is Nokia Technologies
Oy. Appeal Br. 1.
2 Our decision refers to the Specification (Spec.) filed May 31, 2012, the
Examiner’s Final Office Action dated April 30, 2015, Appellants’ Appeal
Brief (Appeal Br.) filed October 13, 2015, the Examiner’s Answer (Ans.)
dated February 25, 2016, and Appellants’ Reply Brief (Reply Br.) filed April
1,2016.
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Application 13/484,442
STATEMENT OF THE CASE
The invention relates to methods and apparatus for tracking a user’s
gaze for medical diagnosis. Spec. 11. Appellants disclose that the
characteristics of a user’s gaze may be influenced by the user’s medical
condition. Id. ^ 4. Using gaze tracking technology which monitors the
motion of the user’s eyes to determine where the user is looking, Appellants
disclose that it is known to detect peripheral blind spots, as well as
glaucoma, brain tumors, and other eye diseases. Id. According to
Appellants, however, such techniques utilize artificial stimuli and are
restricted to laboratory settings. Id. 1 5.
Appellants disclose methods and apparatus which utilize a “non­
diagnostic stimulus” for tracking the user’s gaze, wherein the type of the
stimulus is determined and then an indication of the user’s gaze behavior
and type of the stimulus are generated. Id. ^ 8. In particular, Appellants
disclose that the gaze tracking may be operated with an object recognition
camera configured to view in the direction of the gaze of the user and a
processor that determines what object or objects the user is observing. Id.
20, 55. As such, Appellants disclose that the user’s gaze behavior may be
assessed based on everyday or “real world” stimuli, rather than clinical or
laboratory stimuli. Id. 128.
Claim 1, reproduced below from the Claims Appendix to the Appeal
Brief, is illustrative of the subject matter on appeal.
1. A method comprising:
detecting a gaze behavior of a user in response to a
stimulus, where the stimulus is a non-diagnostic stimulus that is
a visual stimulus that is not specifically created or generated for
a diagnostic testing machine or method;
determining a type of the non-diagnostic visual stimulus
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by using a camera to image a scene being viewed by the user
and by using a processor-implemented object recognition
technique to identify an object or objects in the imaged scene to
which the gaze of the user is directed;
assigning the identified object or objects to a particular
non-diagnostic visual stimulus classification and type of non­
diagnostic visual stimulus;
associating the detected gaze behavior with the identified
object or objects; and
generating an indication of the gaze behavior and the
determined type of the non-diagnostic visual stimulus.
Independent claims 10, 15, and 21 similarly recite determining the
type of non-diagnostic visual stimulus using a camera and a processor-
implemented object recognition technique.
REJECTIONS
The Examiner maintains, and Appellants request our review of, the
following grounds of rejection:
1. Claims 1^1, 6-12, 1^N17, and 21 under 35 U.S.C. § 102(b) as
anticipated by Vickers;3 and
2. Claims 5, 13, 18, and 22 under 35 U.S.C. § 103(a) as
unpatentable over Vickers in view of Davis.4
ANALYSIS
The dispositive issue before us in this appeal is whether Appellants
have identified reversible error in the Examiner’s finding that Vickers
teaches methods and apparatus which perform and operate to determine the
type of non-diagnostic visual stimulus using a camera and a processor-
3 WO 01/74236 Al, published October 11, 2001 (“Vickers”).
4 US 2011/0161076 Al, published June 30, 2011 (“Davis”).
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implemented object recognition technique as recited in each of independent
claims 1, 10, 15, and 21. We answer this question in the affirmative for the
reasons expressed in the Appeal and Reply Briefs and, therefore, will not
sustain the Examiner’s anticipation rejection based on Vickers. As the
Examiner’s obviousness rejection relies on the above erroneous finding
regarding Vickers as evidence that the claimed invention would have been
obvious to one of ordinary skill in the art, we also will not sustain this
obviousness rejection.
Appellants’ arguments on appeal for each of independent claims 1,10,
15, and 21 are substantively similar. See generally App. Br. 7—39. A central
issue before us is the meaning of “a non-diagnostic stimulus.” The
Examiner takes the position that objects and people in the external scene
under the user’s gaze—including moving objects such as an arm, a ball,
serving device, paddle, or other target object as used in Vickers—are all
examples of non-diagnostic stimuli. Ans. 3—5. On the other hand,
Appellants’ position is that a non-diagnostic stimulus is “a visual stimulus
that is not specifically created or generated for a diagnostic testing machine
or method,” as defined in each of the independent claims.
We begin, appropriately, with the claim’s words. See Amazon.com,
Inc. v. Barnesandnoble.com, Inc., 239 F.3d 1343, 1351 (Fed. Cir. 2001)
(“Only when a claim is properly understood can a determination be made . . .
whether the prior art anticipates and/or renders obvious the claimed
invention.”). During examination, claim terms are given their broadest
reasonable construction consistent with the specification. In re Bond, 910
F.2d 831, 833 (Fed. Cir. 1990). In general, words used in a claim are
accorded their ordinary and customary meaning. Honeywell Int 7 Inc. v.
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Universal Avionics Sys. Corp., 488 F.3d 982, 992 (Fed. Cir. 2007). Under a
broadest reasonable interpretation, words of the claim must be given their
plain meaning, unless such meaning is inconsistent with the specification.
Having considered the respective interpretations of the Examiner and
Appellants, we find the broadest reasonable interpretation of “a non­
diagnostic stimulus,” consistent with Appellants’ Specification, is a physical
object or image of a physical object (e.g., page of text or a display screen) in
the “real world,” that is not known before the method is performed, as
opposed to a predetermined or known object that is presented to the user for
the sole purpose of a diagnostic test. Initially, we agree with Appellants that
each of the independent claims provides a definition for “a non-diagnostic
stimulus.” App. Br., Claims App’x (Claim 1 (“a visual stimulus that is not
specifically created or generated for a diagnostic testing machine or
method”)). We further note that Appellants’ Specification defines “non­
diagnostic stimulus” and “non-diagnostic stimuli” as “visual
stimuli/stimulus which is not specifically created or generated for a
diagnostic testing machine/apparatus/method.” Spec. 130. Moreover, the
Specification distinguishes “artificial stimuli” and “virtual stimuli” from
“non-diagnostic stimuli” or “real world stimuli and other stimuli not
generated specifically for the purposes of diagnostics.” Id. Tflf 5, 30. In
addition, the Specification teaches that the object or objects the user is
observing in a particular field of view is considered the stimulus or stimuli
for the invention. Id. 120. According to the Specification, the invention
determines the gaze behavior associated with a certain stimulus or type of
stimulus, including faces, photos, text, or roads. Id. 27, 37, 51. Further,
such gaze tracking may be based on “everyday or ‘real world’ stimulus or
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stimuli” or visual information which the user might observe during normal
living, which may be a book the user is reading, images displayed on a
television or movie screen the user is watching, the face of a person the user
is looking at, or a pattern the user is looking at (e.g., while playing a board
or card game). Id. ]f 28. Because the stimulus must be identified via the
method and apparatus of the invention, in order to be a non-diagnostic
stimulus, the stimulus cannot be known or predetermined before the gaze
behavior is assessed.
Appellants, however, do not exclude the use of virtual stimuli in
augmented reality scenes. The Specification discloses that such stimuli may
be generated as labels added to provide details of items in the real world
scene that may be visible to the user wearing the apparatus. Id. 135, Fig. 6.
In this instance, the ordinary artisan would understand that the labels added
in augmented reality relate to and provide details regarding the objects being
observed in reality, e.g., names of the objects in the field of view. In
addition, Appellants disclose that the stimuli may be real world stimuli
including not only physical objects, but also computer generated images
encountered in non-diagnostic settings, e.g., word processor, gaming
application, web browser, etc. Id. 1 61.
Given these disclosures, the ordinary artisan would reasonably
interpret “non-diagnostic stimulus” as any object or image the user would
encounter outside a clinical setting during normal living where the object or
image is not generated for the user for diagnostic purposes. Accordingly,
our consideration of the anticipation and obviousness rejections will be
based on this interpretation of “non-diagnostic stimulus” of claim 1.
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Anticipation is established when a single prior art reference discloses
all features of the claimed invention. In re Spada, 911 F.2d 705, 708 (Fed.
Cir. 1990); Celeritas Techs., Ltd. v. Rockwell Inti Corp., 150 F.3d 1354,
1361 (Fed. Cir. 1998) (A claim is anticipated only where “each and every
limitation is found either expressly or inherently in a single prior art
reference.”)
The Examiner finds Vickers teaches methods and apparatus
comprising, inter alia, detecting a gaze behavior of a user in response to a
stimulus, where the stimulus is a non-diagnostic stimulus that is a visual
stimulus that is not specifically created or generated for a diagnostic testing
machine or method (Final Act. 3), and determining a type of the non­
diagnostic visual stimulus using a camera to image a scene being viewed by
the user and a processor-implemented object recognition technique to
identify an object or objects in the imaged scene to which the gaze of the
user is directed {id. at 4). The Examiner finds Vickers teaches a non­
diagnostic stimulus may be objects and people in the external scene, as well
as moving objects such as an arm, bah, serving device, and paddle. Id. The
Examiner also finds Vickers teaches determining a type of the non­
diagnostic visual stimulus using an object recognition technique because
Vickers teaches analysis and data value assignment of observable physical
characteristics and motor activities of people and objects, as well as
recognition of markers in images of moving objects. Id.', Ans. 4.
Appellants argue that Vickers does not teach use of non-diagnostic
stimuli and does not teach method or apparatus for determining a type of
non-diagnostic stimulus using a camera and a processor-implemented object
recognition technique to identify an object or objects in the imaged scene to
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which the user’s gaze is directed and assigning the identified object or
objects to a particular stimulus classification and type of stimulus. Appeal
Br. 7—19. Appellants contend that the ordinary artisan would not consider
Vickers’ ball to be a non-diagnostic stimulus because it is a known
predetermined object to which the user’s reaction is measured. Id. at 17.
Likewise, Appellants contend neither would the ordinary artisan have
considered Vickers’ retroreflective markers to be non-diagnostic stimuli. Id.
at 9. As such, Appellants urge that Vickers uses a predetermined and a
priori known object and does not need to determine the type of non­
diagnostic stimulus to which the user’s gaze is directed nor assign a
classification to that stimulus. Id. at 10.
Appellants’ arguments are persuasive of reversible error. Vickers
uses a known object as the stimulus in their method and apparatus, and
measures the user’s completion of a task in relation to that known object.
Vickers 2:27—31. Further, although the Examiner finds Vickers teaches
assigning data values to observable physical characteristics of recorded
mixer output from the scene before the user, including the user’s motor
activity, people or objects in the scene, gaze locations and behaviors, eye
movement, and activity performance (Final Act. 4; Ans. 4), Vickers teaches
such data processing analytics in order to provide three-dimensional position
data of the user’s eye gaze, as well as head, arm, and ball flight, as the
diagnostic test is conducted. Vickers 12:5—12. Vickers also teaches the
dependent variables that are determined using this data {id. at 12:14—17),
none of which include determining a type of stimulus that the user is
observing. Nor do the data values assigned to Vickers’ mixer output
include any indication that the type of stimulus the user is observing is
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determined. Id. at 20:1—21. Indeed, we are persuaded that Vickers has no
purpose for processor-implemented object recognition techniques such as
those described by Appellants, e.g., optical character recognition, template
matching, weak classifier cascades, bag of features, edge-matching, and
histogram matching (Spec. 137), for determining the type of non-diagnostic
stimulus. Accordingly, we are persuaded that Vickers fails to teach use of a
non-diagnostic stimulus, as interpreted above, along with method and
apparatus for determining a type of non-diagnostic stimulus using a camera
imaging the scene viewed by the user and a processor-implemented object
recognition technique and assigning the identified stimulus to a particular
classification and type. For these reasons, we reverse the Examiner’s
anticipation rejection based on Vickers.
The Examiner’s obviousness rejection relies on the above-identified
erroneous findings that Vickers teaches non-diagnostic stimulus, along with
method and apparatus for determining a type of non-diagnostic stimulus
using a camera imaging the scene viewed by the user and a processor-
implemented object recognition technique and assigning the identified
stimulus to a particular classification and type. As such, the obviousness
rejection does not have sufficient factual underpinning. In re Kahn, 441
F.3d 977, 988 (Fed. Cir. 2006) (“[R]ejections on obviousness grounds
cannot be sustained by mere conclusory statements; instead, there must be
some articulated reasoning with some rational underpinning to support the
legal conclusion of obviousness.” (quoted with approval in KSR Int’l Co. v.
Teleflex Inc., 550 U.S. 398, 418 (2007))). We, therefore, also reverse the
Examiner’s obviousness rejection over Vickers in view of Davis.
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DECISION
Upon consideration of the record, and for the reasons given above and
in the Appeal and Reply Briefs, the decision of the Examiner rejecting
claims 1—4, 6—12, 14—17, and 21 under 35 U.S.C. § 102(b) as anticipated by
Vickers, and claims 5, 13, 18, and 22 under 35 U.S.C. § 103(a) as
unpatentable over Vickers in view of Davis is reversed.
REVERSED
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