Affectiva, Inc.

Patent Trials and Appeals BoardMay 14, 2021

2020006382 (P.T.A.B. May. 14, 2021)

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. 15/395,750 12/30/2016 Daniel McDuff AFF-080 5901 85181 7590 05/14/2021 Adams Intellex, PLC PO Box 197 Hinesburg, VT 05461 EXAMINER IP, JASON M ART UNIT PAPER NUMBER 3793 NOTIFICATION DATE DELIVERY MODE 05/14/2021 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): patents@adamsip.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte DANIEL McDUFF and RANA EL KALIOUBY Appeal 2020-006382 Application 15/395,750 Technology Center 3700 Before MICHAEL L. HOELTER, BENJAMIN D. M. WOOD, and JEREMY M. PLENZLER, Administrative Patent Judges. PLENZLER, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the Examiner’s decision to reject claims 1–3, 6–8, 10, 11, 13–17, 25–28, 35–37, and 39–44. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. 1 We use the word Appellant to refer to “applicant” as defined in 37 C.F.R. § 1.42(a). Appellant identifies the real party in interest as Affectiva, Inc. Appeal Br. 3. Appeal 2020-006382 Application 15/395,750 2 CLAIMED SUBJECT MATTER The claims relate to image analysis. Claim 1, reproduced below, is illustrative of the claimed subject matter: 1. A computer-implemented method for image analysis comprising: obtaining an image of an individual; identifying a face of the individual; evaluating the individual to be within a sub-sectional component of a population; and performing, using one or more processors, an evaluation of content of the face based on the evaluating of the individual to be within the sub-sectional component of the population, wherein the performing the evaluation of content of the face is based on modulating a sensitivity to an emotional content by selecting a first threshold for the evaluation that is associated with the sub-sectional component of the population. REFERENCES The prior art relied upon by the Examiner is: Name Reference Date Hsieh US 7,003,135 B2 Feb. 21, 2006 Sharma US 7,921,036 B1 Apr. 5, 2011 Matsugu US 2005/0187437 A1 Aug. 25, 2005 Bacivarov US 2011/0007174 A1 Jan. 13, 2011 Albiol et al., Face Recognition Using HOG-EBGM, 29 Pattern Recognition Letters 1537–1549 (2008). REJECTIONS Claims 1–3, 6–8, 10, 11, 13–17, 25–28, 35–37, and 39–44 are rejected under 35 U.S.C. § 112(a) as failing to comply with the written description requirement. Appeal 2020-006382 Application 15/395,750 3 Claims 1–3, 6–8, 10, 11, 13–17, 25–28, 35–37, and 39–44 are rejected under 35 U.S.C. § 101 as being patent-ineligible. Claims 1–3, 6–8, 10, 11, 13, 14, 35, 39, 40, 41, 43, and 44 are rejected under 35 U.S.C. § 103 as being unpatentable over Sharma and Bacivarov. Claims 15–17 are rejected under 35 U.S.C. § 103 as being unpatentable over Sharma, Bacivarov, and Matsugu. Claims 25–28 and 42 are rejected under 35 U.S.C. § 103 as being unpatentable over Sharma, Bacivarov, and Hsieh. Claims 36 and 37 are rejected under 35 U.S.C. § 103 as being unpatentable over Sharma, Bacivarov, and Albiol. OPINION Written Description The Examiner rejects the claims as lacking written description support because “[i]t is unclear as to how [the] modulation [in claims 1, 39, and 40] takes place by way of selecting a threshold.” Final Act. 8. The Examiner additionally explains “[r]egarding claim 7, it is unclear as to how a face of an individual is evaluated to be associated with a particular culture.” Id. at 9. “The test for the sufficiency of the written description ‘is whether the disclosure of the application relied upon reasonably conveys to those skilled in the art that the inventor had possession of the claimed subject matter as of the filing date.’” Vasudevan Software, Inc. v. MicroStrategy, Inc., 782 F.3d 671, 682 (Fed. Cir. 2015) (quoting Ariad Pharm., Inc. v. Eli Lilly & Co., 598 F.3d 1336, 1351 (Fed. Cir. 2010) (en banc)). The Examiner has the initial burden of presenting evidence of reasons why persons skilled in the art Appeal 2020-006382 Application 15/395,750 4 would not recognize in the disclosure a description of the invention defined by the claims. In re Wertheim, 541 F.2d 257, 263 (CCPA 1976). The Examiner’s discussion of the written description rejection appears related to indefiniteness, rather than a lack of written description. The Examiner offers no explanation as to why persons skilled in the art would not recognize in the disclosure a description of the invention defined by the claims. We do not sustain the Examiner’s rejection under 35 U.S.C. § 112(a). Patent Eligibility The Examiner determines that the claims are patent-ineligible under 35 U.S.C. § 101. Final Act. 9–13. Appellant argues claims 1–3, 6–8, 10, 11, 13–17, 25–28, 35–37, and 39–44 as a group. Appeal Br. 11–16. We select claim 1 as representative. Claims 2, 3, 6–8, 10, 11, 13–17, 25–28, 35–37, and 39–44 stand or fall with claim 1. See 37 C.F.R. § 41.37(c)(1)(iv). Section 101 of the Patent Act provides that “any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof” is patent eligible. 35 U.S.C. § 101. Claim 1 falls within the literal scope of this provision because it recites a process. The Supreme Court, however, has long recognized an implicit exception to this section: “Laws of nature, natural phenomena, and abstract ideas are not patentable.” Alice Corp. v. CLS Bank lnt’l, 573 U.S. 208, 216 (2014) (quoting Ass’n for Molecular Pathology v. Myriad Genetics, Inc., 569 U.S. 576, 589 (2013)). To determine whether a claim falls within one of these excluded categories, the Court has set out a two-part framework. The framework requires us first to consider whether the claim is “directed to one Appeal 2020-006382 Application 15/395,750 5 of those patent-ineligible concepts.” Alice, 573 U.S. at 217. If so, we then examine “the elements of each claim both individually and ‘as an ordered combination’ to determine whether the additional elements ‘transform the nature of the claim’ into a patent-eligible application.” Alice, 573 U.S. at 217 (quoting Mayo Collaborative Servs. v. Prometheus Labs., Inc., 566 U.S. 66, 79, 78 (2012)). That is, we examine the claims for an “inventive concept,” “an element or combination of elements that is ‘sufficient to ensure that the patent in practice amounts to significantly more than a patent upon the [ineligible concept] itself.’” Alice, 573 U.S. at 217–18 (alteration in original) (quoting Mayo, 566 U.S. at 72–73). Under the 2019 Eligibility Guidance, to decide whether a claim is “directed to” an abstract idea, we evaluate whether the claim (1) recites an abstract idea grouping listed in the guidance and (2) fails to integrate the recited abstract idea into a practical application. See 2019 Revised Patent Subject Matter Eligibility Guidance, 84 Fed. Reg. 50, 51 (Jan. 7, 2019) (“2019 Eligibility Guidance”).2 The groupings of abstract ideas listed in the guidance include, for example: “Mathematical concepts,” “Certain methods of organizing human activity,” and “Mental processes.” 2019 Eligibility Guidance, 84 Fed. Reg. at 52. If the claim is “directed to” an abstract idea, as noted above, we then determine whether the claim recites an inventive concept. The guidance explains that, when making this determination, we should consider whether the additional claim elements add “a specific limitation or combination of limitations that are not [a] well-understood, 2 An update to the 2019 Revised Patent Subject Matter Eligibility Guidance issued in October 2019 (“October 2019 Update,” available at https:// www.uspto.gov/sites/default/files/documents/peg_oct_2019_update.pdf). Appeal 2020-006382 Application 15/395,750 6 routine, conventional activity in the field” or “simply append[] well- understood, routine, conventional activities previously known to the industry.” 2019 Eligibility Guidance, 84 Fed. Reg. at 56. Step 2(A), Prong 1 The Examiner explains that the claims recite abstract ideas in the mental processes category. Final Act. 10–11; Ans. 16–17. Appellant responds, for example, that “[t]he pending claims are not directed to abstract ideas, as the pending claims are directed to a particular combination of steps that result in an improvement to computer technology and that cannot be performed mentally or with pen and paper.” Appeal Br. 11. We agree with the Examiner that each step of claim 1 can at least be considered a mental process. As the Examiner explains, the step of “obtaining an image of an individual” can simply be “an individual looking at another.” Ans. 17. The Examiner is also correct that the additional steps involving identifying and evaluating the face can be performed in the human mind. Id. Appellant’s contention that “modulating sensitivities by selecting thresholds and performing evaluations of the content of faces based on the modulating are activities performed by computer systems and are not abstract ideas that can be performed by hand with pen and paper” (Appeal Br. 10) is without merit. The Specification provides an example of “modulating” as adjusting the “sensitivity to an emotion[al] content” by understanding that “[c]ultural and environmental differences can widely affect the range of expressed human emotion.” Spec. ¶ 42. The Specification explains, for example, that “[a] smile can be formed by raising the corners of the mouth and can include Appeal 2020-006382 Application 15/395,750 7 lips together, lips apart, etc.” and “a smile expressed by one ethnic group can be different from a smile to another ethnic group, and so on.” Id. ¶ 43. That is, a person with the knowledge of the difference in smile attributes between ethnic groups can perform this “modulating” in their mind because they account for the different facial characteristics when viewing the person’s face. Ultimately, we agree that each step of claim 1 recites an abstract idea because each step can at least be considered a mental process. Accordingly, we are not apprised of error in the Examiner’s determination that every step in claim 1 recites an abstract idea. Step 2(A), Prong 2 The Examiner determines that “[t]he claim does not integrate the judicial exception into a practical application because . . . [t]he courts have determined that an additional element that merely includes instructions to implement an abstract idea on a computer is not an example of an integration into a practical application.” Final Act. 11. Appellant responds by alleging, generally, that the “performing, using one or more processors, an evaluation of content of the face based on . . . modulating a sensitivity to an emotional content by selecting a first threshold for the evaluation that is associated with the sub-sectional component of the population” step “imposes a practical application and meaningful limit on any judicial exception that the claims may be deemed to ‘involve.’” Appeal Br. 11. Appellant’s contention is not persuasive. Beyond the abstract ideas noted above, the claim adds nothing more than a generic processor that performs generic computer functions to implement the abstract ideas. Accordingly, we are not apprised of error in Appeal 2020-006382 Application 15/395,750 8 the Examiner’s determination that the claim does not include any practical application. For the reasons set forth above, we agree that the claim is directed to an abstract idea. Step 2(B) Because we agree with the Examiner that claim 1 is directed to an abstract idea, we next determine whether the claim provides an inventive concept. See 2019 Eligibility Guidance, 84 Fed. Reg. at 56. This requires us to evaluate whether the additional claim elements add “a specific limitation or combination of limitations that are not [a] well-understood, routine, conventional activity in the field” or “simply append[] well-understood, routine, conventional activities previously known to the industry, specified at a high level of generality.” Id. The Examiner determines that the claim does not include additional elements that are sufficient to amount to significantly more than the judicial exception because it simply performs generic computer functions on generic computer components. Final Act. 11–13 (discussing the Specification’s embodiments including generic computer components). We agree with the Examiner, and Appellant does not dispute the Examiner’s determination, other than simply alleging that “[t]he Office Action fails to provide support for such an element being well-understood, routine, or conventional.” Appeal Br. 9–10. Appellant’s allegation does not identify error because, consistent with the Examiner’s findings, the Specification describes generic computer components being used to carry out the recited evaluation. See, e.g., Spec. ¶ 56 (“The analysis can be Appeal 2020-006382 Application 15/395,750 9 performed on a mobile device . . . includ[ing] one or more of a laptop computer, a tablet, a PDA, a smartphone, a wearable device, and so on.”). Accordingly, we are not apprised of error in the Examiner’s determination that the claim does not add any inventive concept. Conclusion For the reasons set forth above, after applying the 2019 Eligibility Guidance, we sustain the Examiner’s decision to reject claims 1–3, 6–8, 10, 11, 13–17, 25–28, 35–37, and 39–44 under 35 U.S.C. § 101. Obviousness The Examiner’s obviousness rejections rely on a finding that “Bacivarov teaches evaluating facial content to an emotion of an individual based on adjusting an emotional content in accordance with ‘certain criteria’, wherein the individual is considered to be in a sub-component of the population by being a video game player in certain emotional states ([0141]; [0142]).” Final Act. 14 (emphasis omitted). In the Answer, the Examiner clarifies that Bacivarov teaches “evaluating of the individual to be within the sub-sectional component of the population because the sub-sectional component in Bacivarov comprise game players who may express certain moods in response to gameplay.” Ans. 21 (emphasis omitted). In response, “appellant respectfully submits that any fair reading of paragraphs [0141] and [0142] of Bacivarov . . . will reveal these paragraphs as being devoid of any ‘modulating a sensitivity to an emotional content by selecting a first threshold for the evaluation that is associated with the sub- sectional component of the population.’” Appeal Br. 12. Appellant has the better position. Appeal 2020-006382 Application 15/395,750 10 The “sub-sectional component of the population” cannot reasonably be considered “game players who may express certain moods in response to gameplay,” as the Examiner determines. Rather, consistent with the Specification, the “sub-sectional component of the population” is a group within a population having characteristics that affect facial features associated with an emotion. See, e.g., Spec. ¶ 42. Accordingly, the Examiner’s findings do not establish that Bacivarov teaches “performing the evaluation of content of the face is based on modulating a sensitivity to an emotional content by selecting a first threshold for the evaluation that is associated with the sub-sectional component of the population,” as recited in independent claim 1, or the similar limitations recited in independent claims 39 and 40. CONCLUSION The Examiner’s rejection under 35 U.S.C. § 101 is affirmed. The Examiner’s rejections under 35 U.S.C. § 112(a) and § 103 are reversed. Appeal 2020-006382 Application 15/395,750 11 DECISION SUMMARY In summary: Claim(s) Rejected 35 U.S.C. § Reference(s)/ Basis Affirmed Reversed 1–3, 6–8, 10, 11, 13–17, 25–28, 35–37, 39–44 112 Written Description 1–3, 6–8, 10, 11, 13–17, 25–28, 35– 37, 39–44 1–3, 6–8, 10, 11, 13–17, 25–28, 35–37, 39–44 101 Eligibility 1–3, 6–8, 10, 11, 13–17, 25–28, 35–37, 39–44 1–3, 6–8, 10, 11, 13, 14, 35, 39, 40, 41, 43, 44 103 Sharma, Bacivarov 1–3, 6–8, 10, 11, 13, 14, 35, 39, 40, 41, 43, 44 15–17 103 Sharma, Bacivarov, Matsugu 15–17 25–28, 42 103 Sharma, Bacivarov, Hsieh 25–28, 42 36, 37 103 Sharma, Bacivarov, Albiol 36, 37 Overall Outcome 1–3, 6–8, 10, 11, 13–17, 25–28, 35– 37, 39–44 Appeal 2020-006382 Application 15/395,750 12 TIME PERIOD FOR RESPONSE 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