Shunock, Michael Stewart.

Patent Trials and Appeals Board

Dec 4, 2020

2020004581 (P.T.A.B. Dec. 4, 2020)

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.
14/129,132 04/09/2014 Michael Stewart Shunock 23719-P45169US00 3101
1059 7590 12/04/2020
BERESKIN & PARR LLP/S.E.N.C.R.L., s.r.l.
40 KING STREET WEST
40TH FLOOR
TORONTO, ONTARIO M5H 3Y2
CANADA
EXAMINER
MANDEL, MONICA A
ART UNIT PAPER NUMBER
3621
NOTIFICATION DATE DELIVERY MODE
12/04/2020 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):
ipprocessingcentre@bereskinparr.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte MICHAEL STEWART SHUNOCK, LINDA ARHIN,
SINA SOJOODI, SHERWIN KARTICK, and MARK D’CUNHA
____________

Appeal 2020-004581
Application 14/129,132
Technology Center 3600
____________

Before BIBHU R. MOHANTY, NINA L. MEDLOCK, and
KENNETH G. SCHOPFER, Administrative Patent Judges.

MEDLOCK, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE
Appellant1 appeals under 35 U.S.C. § 134(a) from the Examiner’s
final rejection of claims 25–38 and 40–55. We have jurisdiction under
35 U.S.C. § 6(b).
We AFFIRM.

1 We use the term “Appellant” to refer to “applicant” as defined in 37 C.F.R.
§ 1.42. Our decision references Appellant’s Appeal Brief (“Appeal Br.,”
filed November 21, 2019) and the Examiner’s Answer (“Ans.,” mailed
April 1, 2020) and Final Office Action (“Final Act.,” mailed June 27, 2019).
Appellant identifies Michael Shunock as the real party in interest (Appeal
Br. 3).
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CLAIMED INVENTION
The claimed invention “relates generally to image annotation” and,
more specifically, to “annotating images with item information” (Spec. ¶ 2).
Claims 25 and 40 are the independent claims on appeal. Claim 25,
reproduced below with bracketed notations added, is illustrative of the
claimed subject matter:
25. A system for annotating an image, the system
comprising a server having a processor and a memory, the server
being configured to communicate with a first computing device
operated by a first user of a plurality of users and a second
computing device operated by a second user of the plurality of
users, the first computing device having a first display screen and
a first-user input device and the second computing device having
a second display screen and a second-user input device, the
server further being configured to provide instructions to the first
computing device and the second computing device to
[(a)] configure the first computing device to display a
plurality of images on the first display screen, each image of the
plurality of images being displayed with a plurality of command
buttons, the plurality of command buttons corresponding to a
plurality of distinct ratings representing a plurality of selectable
qualitative relationships between each user and the image, the
plurality of command buttons, the plurality of distinct ratings and
the plurality of selectable qualitative relationships being the same
for each image of the plurality of images, each rating in the
plurality of distinct ratings being different from the other ratings
in the plurality of distinct ratings, and each selectable qualitative
relationship in the plurality of selectable qualitative relationships
being different from the other selectable qualitative relationships
in the plurality of selectable qualitative relationships, such that
i) each command button of the plurality of command buttons
corresponds to a distinct rating in the plurality of distinct ratings,
the distinct rating representing a selectable qualitative
relationship in the plurality of selectable qualitative
relationships, and ii) at least two command buttons are selectable
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by each user to select at least two distinct ratings representing
at least two different qualitative relationships;
[(b)] configure the first computing device to display, for
a first image of the plurality of images, the plurality of command
buttons associated with the first image, each command button of
the plurality of command buttons associated with the first image
being selectable using the first-user input device;
[(c)] associate a first rating field with the first image in
response to the first user selecting at least one command button
from the plurality of command buttons associated with the first
image to select at least one qualitative relationship between the
first user and the first image, using the first-user input device, the
at least one command button corresponding to at least one first
rating, the first rating field comprising information for
identifying the at least one first rating;
[(d)] configure the second computing device to display
the first image on the second display screen, and to display, for
the first image, the plurality of command buttons associated with
the first image, each command button of the plurality of
command buttons associated with the first image being
selectable using the second-user input device;
[(e)] associate a second rating field with the first image
in response to the second user selecting at least one command
button from the plurality of command buttons associated with the
first image to select at least one qualitative relationship between
the second user and the first image, using the second-user input
device, the at least one command button corresponding to at least
one second rating, the second rating field comprising information
for identifying the at least one second rating; and
[(f)] determine a correlation for each image of the
plurality of images, the correlation comprising an image
identifier, the first rating field, an identifier corresponding to the
first user, the second rating field, and an identifier corresponding
to the second user wherein the correlation is searchable based on
at least one of the first rating field or the second rating field.
Appeal Br. 18–19 (Claims Appendix) (emphasis added).
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REJECTIONS
Claims 25, 26, 38, 40, 41, 53, and 54 are rejected under 35 U.S.C.
§ 103(a) as unpatentable over O’Sullivan et al. (US 2009/0164301 A1,
published June 25, 2009) (“O’Sullivan”), Peters et al.
(US 2011/0295848 A1, published Dec. 1, 2011) (“Peters”), and
Nichols et al. (US 2007/0233740 A1, published Oct. 4, 2007) (“Nichols”).
Claims 27–29, 34, 42–44, and 49 are rejected under 35 U.S.C.
§ 103(a) as unpatentable over O’Sullivan, Peters, Nichols, and Keil et al.
(US 2003/0088457 A1, published May 8, 2003) (“Keil”).
Claims 30–33, 45–48, and 55 are rejected under 35 U.S.C. § 103(a) as
unpatentable over O’Sullivan, Peters, Nichols, Keil, and Morton
(US 2008/0010263 A1, published Jan. 10, 2008).
Claims 35 and 50 are rejected under 35 U.S.C. § 103(a) as
unpatentable over O’Sullivan, Peters, Nichols, Keil, and Xie et al.
(US 2008/0052151 A1, published Feb. 28, 2008) (“Xie”).
Claims 36 and 51 are rejected under 35 U.S.C. § 103(a) as
unpatentable over O’Sullivan, Peters, Nichols, Keil, and Phillips
(US 2007/0239722 A1, published Oct. 11, 2007).
Claims 37 and 52 are rejected under 35 U.S.C. § 103(a) as
unpatentable over O’Sullivan, Peters, Nichols, Keil, and Kobayashi et al.
(US 2008/0275962 A1, published Nov. 6, 2008) (“Kobayashi”).
ANALYSIS
Independent Claims 25 and 40 and Dependent Claims 26, 38, 41, 53, and 54
We are not persuaded by Appellant’s argument that the Examiner
erred in rejecting independent claims 25 and 40 under 35 U.S.C. § 103(a)
because none of the cited references discloses or suggests that “at least two
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command buttons are selectable by each user to select at least two distinct
ratings representing at least two different qualitative relationships,” as
recited in claim 25, and similarly recited in claim 40 (Appeal Br. 9–13).
Instead, we agree with the Examiner that Peters meets the claim language.
Peters is directed to a computer-based, online, and mobile app system
that collects, filters, and aggregates market data by flashing products, music
clips, words, photos, and other images at users, and measuring the speed of
their responses (Peters ¶ 7). As a game, the object is to identify the most and
least popular products, music clips, words, photos and other images in as
little time as possible (id.). User decisions and response times are, thus,
compared to aggregate responses and speeds to create ratings for every
product, music clip, word, photo, other image, and user (id.).
Peters discloses, in paragraph 9, on which the Examiner relies, that in
a preferred embodiment of the image gaming mode, each product, word,
photo, or other image is displayed onscreen for a limited period of time, e.g.,
two seconds. During that time, a user may have either two or three buttons
from which to choose in indicating his or her assessment (id. ¶ 9). Peters
describes that in cases in which the user has two buttons to choose from, the
options will be: LIKE, DON’T LIKE; in cases in which the user has three
buttons to choose from, the options will be LIKE, DON’T KNOW, DON’T
LIKE (id.) “The speed and ‘accuracy’ of all decisions are recorded to create
ratings and charts for images (products) and users,” where “accuracy” equals
“the individual’s ability to guess what the most and least popular images are
and how close an individual’s assessment of an image is to the assessment of
the aggregate” (id.).
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Appellant argues that none of the cited references, including Peters,
discloses or suggests the argued limitation, i.e., that “at least two command
buttons are selectable by each user to select at least two distinct ratings
representing at least two different qualitative relationships,” because, in each
of the references, “ratings are singular entities and cannot represent a
qualitative relationship such that ‘. . . at least two command buttons are
selectable by each user to select at least two distinct ratings representing at
least two different qualitative relationships’” (Appeal Br. 9). Appellant
asserts, “[i]n the case of star ratings, for example, a single user cannot
simultaneously rate a content item 1 star and 3 stars because the nature of
star ratings is that they are all mutually exclusive” (id.). Appellant
maintains, “[f]or that reason, any prior art disclosure of similarly mutually
exclusive ratings cannot possibly teach or suggest to a skilled person that
two or more of such ratings could be simultaneously selected by the same
user” (id.).
The difficulty with Appellant’s argument is that it is not
commensurate with the scope of the claim. As the Examiner observes, and
we agree, the claims, when properly construed under a broadest reasonable
interpretation, only require that two command buttons are selectable by each
user; the claims do not require that the two command buttons are
“simultaneously” selectable (Ans. 3).
We also are not persuaded by Appellant’s argument that the cited
references fail to disclose or suggest “determin[ing] a correlation for each
image of the plurality of images, the correlation comprising an image
identifier, the first rating field, an identifier corresponding to the first user,
the second rating field, and an identifier corresponding to the second user,”
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i.e., limitation (f), as recited in claim 25, and similarly recited in claim 40
(Appeal Br. 14–16).
Appellant acknowledges that Peters, on which the Examiner relies,
discloses, “at [007] and elsewhere[,] comparing the rating applied by a user
to the aggregate response . . . to determine accuracy” (id. at 15 (citing Peters
¶¶ 7, 9, 13, 14, 16)). Appellant argues that this does not amount to
correlating the rating applied by one user to the rating applied by any other
user, i.e., that Peters is only concerned with determining the user’s position
relative to the aggregate position (id.). Yet, as the Examiner observes,
“comparing the ratings of one user to all users, would include comparing the
rating of one user to a second user” (Ans. 5). Figure 6 of Peters also shows
“multiple ratings fields corresponding to each user for each product” (id.
(citing Peters ¶ 42, and noting that the reference there to “FIG.1,” rather than
“FIG. 6,” is a typographical error)).
Finally, we are not persuaded of Examiner error by Appellant’s
argument that “the chart of FIG. 6 does not include ‘the first rating field’ and
‘the second rating field,’” as called for in limitation (c) of claim 25, and
similarly called for in claim 40 (Appeal Br. 16). Claim 25 recites that the
server is configured to provide instructions to the first computing device
to, inter alia, “associate a first rating field with the first image in response to
the first user selecting at least one command button . . ., the at least one
command button corresponding to at least one first rating, the first rating
field comprising information for identifying the at least one first rating”
(Appeal Br. 19 (emphasis added)). Appellant’s position, as best understood,
is that “the at least one command button corresponding to at least one first
rating, the first rating field comprising information for identifying the at
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least one first rating,” as recited in limitation (c), means that the information
recorded in the first rating field is the user selection. Thus, for example, in
Peters, where there are three selections, the information recorded in the first
rating field, according to Appellant, must be one of the three selections, i.e.,
one of LIKE, DON’T KNOW, and DON’T LIKE.
In Figure 6 of Peters, reproduced below, Player FM is the score
recorded for each player for each product.

Figure 6 is a chart recording scores for each player for each product.
Appellant argues that “the entries in the chart of FIG. 6 alleged to
correspond to the at least one first rating and the at least one second rating of
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the present claims[, i.e., the FM scores,] are based on both accuracy and
speed” and that the FM score shown in Figure 6 is not a rating field, as
claimed, because it cannot identify the rating[, e.g., LIKE, DON’T KNOW,
DON’T LIKE,] associated with the command button selected by the user”
(Appeal Br. 16). Appellant, thus, notes, for example, that two users
selecting the same command buttons may nonetheless have different
FM scores, i.e., because the command buttons, although the same, were
selected at different speeds (id.).
It clearly appears that the underlying premise of Appellant’s argument
is that the rating field must specifically identify the particular command
button selected by the user. But, we find nothing in the claim language that
imposes any such requirement. The chart in Figure 6 of Peters, by
Appellant’s own admission, “shows a player FM score calculated based on
the user’s selected button” (Appeal Br. 16). That the FM score is also based
on speed does not alter that fact. Nor does it preclude a finding that Peters
discloses “associat[ing] a first rating field with the first image in response to
the first user selecting at least one command button”; the first rating field,
i.e., the FM field, “comprising information for identifying the at least one
first rating,” i.e., the FM value; and “the at least one command button,” i.e.,
the command button selected by the user in Peters, “corresponding to,” i.e.,
relating to,2 “at least one first rating,” i.e., a particular user’s FM value.
We are not persuaded on the present record that the Examiner erred in
rejecting independent claims 25 and 40 under 35 U.S.C. § 103(a).

2 See Final Act. 45 (explaining, “[t]he Examiner hereby adopts the
following definitions under the broadest reasonable interpretation
standard”).
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Therefore, we sustain the Examiner’s rejection. We also sustain the
Examiner’s rejection of dependent claims 26, 38, 41, 53, and 54, which are
not argued separately.
Dependent Claims 27–37 and 42–52
Appellant does not present any substantive arguments in response to
the Examiner’s rejections of dependent claims 27–37 and 42–52. Therefore,
the Examiner’s rejections of these dependent claims are summarily
sustained.
Dependent Claim 55
Claim 55 ultimately depends from independent claim 25, and recites
that the server is further configured to, inter alia,
associate an additional first rating field with the first image
in response to the first user selecting from the plurality of
command buttons associated with the first image, using the first-
user input device, an additional at least one command button
different from the at least one command button and
corresponding to an additional first rating different from the first
rating, the additional first rating field comprising information for
identifying the additional first rating; [and]
associate an additional second rating field with the first
image in response to the second user selecting from the plurality
of command buttons associated with the first image, using the
second-user input device, an additional at least one command
button different from the at least one command button
corresponding and to an additional second rating different from
the second rating, the additional second rating field comprising
information for identifying the additional second rating.
Appeal Br. 34 (Claims Appendix).
Appellant quotes the language of claim 55 and, paraphrasing the claim
language, generally describes the claimed features (Appeal Br. 13).
Appellant further notes, “[t]he Examiner alleges that Peters discloses these
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features of claim 55” (id.). But, aside from asserting, “Peters does not
disclose the selection of more than one button by one user in respect of a
single image,” Appellant does not explain why the underlying factual
findings made by the Examiner in support of the obviousness finding are
unreasonable or unsupported.
Absent further explanation, we are not persuaded, on the present
record, that the Examiner erred in rejecting dependent claim 55 under
35 U.S.C. § 103(a). Therefore, we sustain the Examiner’s rejection.
CONCLUSION
In summary:
Claims
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
25, 26, 38,
40, 41, 53,
54
103(a) O’Sullivan, Peters,
Nichols
25, 26, 38,
40, 41, 53,
54

27–29, 34,
42–44, 49
103(a) O’Sullivan, Peters,
Nichols, Keil
27–29, 34,
42–44, 49

30–33,
45–48, 55
103(a) O’Sullivan, Peters,
Nichols, Keil,
Morton
30–33,
45–48, 55

35, 50 103(a) O’Sullivan, Peters,
Nichols, Keil, Xie
35, 50
36, 51 103(a) O’Sullivan, Peters,
Nichols, Keil,
Phillips
36, 51
37, 52 103(a) O’Sullivan, Peters,
Nichols, Keil, and
Kobayashi
37, 52
Overall
Outcome
25–38,
40–55

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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)(1)(iv).
AFFIRMED