Ex Parte Blom

Patent Trial and Appeal Board

Dec 14, 2016

13538289 (P.T.A.B. Dec. 14, 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.
13/538,289 06/29/2012 Jan Otto Blom P6323US00 9686
11764 7590
Ditthavong & Steiner, P.C.
44 Canal Center Plaza
Suite 322
Alexandria, VA 22314
12/16/2016 EXAMINER
KLICOS, NICHOLAS GEORGE
ART UNIT PAPER NUMBER
2142
NOTIFICATION DATE DELIVERY MODE
12/16/2016 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):
docket@dcpatent.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 JAN OTTO BLOM
Appeal 2015-008126
Application 13/538,289
Technology Center 2100
Before DEBRA K. STEPHENS, DANIEL N. FISHMAN, and
IRWIN E. BRANCH, Administrative Patent Judges.
STEPHENS, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellant appeals under 35U.S.C. § 134 from a Final Rejection of
claims 1—20. Claims 21—48 have been cancelled. We have jurisdiction
under 35 U.S.C. § 6(b).
We AFFIRM.
Appeal 2015-008126
Application 13/538,289
STATEMENT OF THE INVENTION
According to Appellant, the claims are directed to a method and
apparatus for determining sensory data associated with a user (Abstract).
Claim 1, reproduced below, is representative of the claimed subject matter:
1. A method comprising facilitating a processing of and/or
processing (1) data and/or (2) information and/or (3) at least one
signal, the (1) data and/or (2) information and/or (3) at least one
signal based, at least in part, on the following:
a processing of sensor data associated with at least one
user to determine one or more activities;
a processing of the sensor data to cause, at least in part, a
classification of the one or more activities into one or more
primary activities, one or more secondary activities, one or more
peripheral activities, or a combination thereof; and
a presentation of at least one user interface for interacting
with at least one of the one or more activities, one or more
content items, one or more applications, or a combination thereof
based, at least in part, on the classification.
REFERENCES
The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
Moon US 2009/0319899 A1 Dec. 24,2009
Kevin Purdy, The Best Android Apps for Your Car, LIFEHACKER,
http://lifehacker.com/5626711/the-best-android-apps for-your-car
(Sept. 2, 2010) (“Purdy”)
Zainul, How to Create Geo-Reminders in Andriod with GeoNote,
www.howtogeek.com/howto/42023/how-to-create-geo-reminders-in-
android-with-geonote, (last visited April 9, 2014) (“Zainul”)
2
Appeal 2015-008126
Application 13/538,289
REJECTIONS
Claims 1, 2, 9—12, 19, and 20 stand rejected under 35 U.S.C. § 102(b)
as being anticipated by Moon (Final Act. 3—6).
Claims 3—7, and 13—171 stand rejected under 35 U.S.C. § 103(a) as
being unpatentable over Moon and Purdy (Final Act. 6—9).
Claims 8 and 18 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Moon and Zainul (Final Act. 9—10).
ISSUES
Objections: Claims 1—20
Appellant argues the objections to claims 1 and 11 and claims 2 and
12, contending, because the objection is for indefmiteness, this issue is a
question of law (App. Br. 5—12; Reply Br. 2, 4). Thus, Appellant contends
the Examiner actually rejected the claims under 35 U.S.C. § 112 (id.).
However, the Examiner did not make a rejection under 35 U.S.C. § 112;
rather the Examiner objected to the claims for informalities and more
specifically, for the use of “and/or” in the preamble and the use of “a
method” and “an apparatus” when referring to independent claims (Final
Act. 2). Objections are petitionable matter, not an appealable matter (See
MPEP §§ 706.01, 1201 (9th ed., Rev. 9, March 2014)). Accordingly, this
matter is not before us.2
1 The Examiner includes claims 9 and 19 in the summary of claims rejected
under § 103 but these claims are rejected under § 102 (Final Act. 6).
2 Although the Examiner has issued objections to the claims, the Examiner
interprets the “and/or” alternatives in the preambles of the claims to mean
“at least one” (Final Act. 2). We agree with the Examiner’s interpretation.
3
Appeal 2015-008126
Application 13/538,289
35 U.S.C. § 102(b): Claims 1, 2, 9-12, 19, and20
Appellant contends the invention as recited in claims 1, 2, 9—12, 19,
and 20, is not anticipated by Moon (App. Br. 7—11). The issues presented by
the arguments are:
Issue 1: Has the Examiner erred in finding Moon discloses “a
processing of sensor data associated with at least one user to determine one
or more activities” and “a presentation of at least one user interface for
interacting with at least one of the one or more activities, one or more
content items, one or more applications, or a combination thereof,” as
recited in independent claim 1 and commensurately recited in independent
claim 11?
Issue 2: Has the Examiner erred in finding Moon discloses “a
categorization of the one or more content items, the one or more
applications, or a combination based, at least in part, on an association with
the one or more primary activities, the one or more secondary activities, the
one or more peripheral activities, or a combination thereof’ as recited in
claim 2 and commensurately recited in claim 12?
ANALYSIS
Appellant argues the Examiner is unreasonably interpreting the term
“activities” and as a result, incorrectly determines Moon’s content items
disclose the recited “activities” (App. Br. 9). More specifically, Appellant
contends content items, such as a digital file of an audio recording, are not
“activities” {id.). As support, Appellant provides dictionary definitions that,
according to Appellant, would be inconsistent with the Examiner’s
interpretation of “activities” and finding Moon’s content items are activities
4
Appeal 2015-008126
Application 13/538,289
(id.). Appellant additionally argues Moon’s “playing songs” is not
classified; rather, Moon describes only classifying content items (id.).
Appellant further argues that due to the claim reciting “activities” as well as
“content items,” Moon’s content items cannot be the recited activities (App.
Br. 10).
Initially, we note Appellant has provided dictionary definitions from
April 3, 2015. However, April 3, 2015 is well after the filing date of the
application. As such, Appellant has not shown an ordinarily skilled artisan
would have interpreted the terms as proffered, at the time of the invention.
We further note Appellant has not explicitly defined the term “activities” in
the Specification. The Examiner identifies descriptions of activities in
Appellant’s Specification (Ans. 11 (citing Spec. H 55, 73)).
Upon review of the Specification, we find the Specification describes
“the sensors may capture an image and/or audio sample of the user and
utilize one or more activity recognition algorithms to determine if the user is
sitting, speaking, walking, looking at a computer monitor, typing at the
computer keyboard, looking at a certain direction, user gestures, facial
expressions of the user, and the like” (Spec. 138). The Specification
provides further examples of activities such as talking on a phone, utilizing
an application to check for emails, viewing an instant message notification, a
phone call, taking part in a conversation, listening to music, eating at a
restaurant, drinking at a bar, watching a movie or video, exercising,
traveling, and “listening and waiting for a conference call to begin” (Spec.
1141—42, 55, 57, 72-73).
5
Appeal 2015-008126
Application 13/538,289
We are not persuaded the Examiner’s interpretation is unreasonable in
light of the Specification. Furthermore, although the Examiner’s rejection is
not a model of clarity, we agree with the Examiner’s findings.
The Examiner interprets the sensors as a touch screen interface that
senses when a user presses or touches the screen (Ans. 10). The Examiner
further finds Moon discloses multiple selectable activities, such as video
playback, music playback, file browsing, and changing device settings (Ans.
11 (citing Moon, Figs. 2—3)). We agree with the Examiner’s findings. More
specifically, we agree Moon describes “a processing of sensor data” (data
from the touch screen) “associated with at least one user to determine one or
more activities” (video playback, music playback, etc.) (Ans. 11). Because
Appellant’s list of activities includes typing at a computer keyboard,
utilizing an application to check for emails, and viewing an instant message
notification, we agree the activities include video playback, music playback,
etc. as described by Moon (Moon 148, Figs. 2 and 3). Indeed, Figure 2,
Moon describes screens of a multi-media player, in which an activity may be
selected.
Accordingly, Appellant has not persuaded us Moon fails to disclose “a
processing of sensor data associated with at least one user to determine one
or more activities,” as recited in independent claim 1 and commensurately
recited independent claim 11.
Appellant further argues due to the claim reciting “activities” as well
as “content items,” Moon’s content items cannot be the recited activities
(App. Br. 10). We are not persuaded as neither claim 1 nor claim 11
requires content items; rather, claim 1 recites “interacting with at least one of
the one or more activities, one or more content items, one or more
6
Appeal 2015-008126
Application 13/538,289
applications, or a combination thereof’ and claim 11 is commensurately
recited. Thus, interacting with one activity satisfies the claim.
Moreover, we are not persuaded Moon fails to disclose “content
items.” Specifically, we agree with the Examiner that Moon describes
interacting with specific music (content items) (Moon, Figs. 2—3).
Therefore, Appellant has not persuaded us Moon fails to disclose “a
presentation of at least one user interface for interacting with at least one of
the one or more activities, one or more content items, one or more
applications, or a combination thereof,” as recited in independent claim 1
and commensurately recited independent claim 11.
Appellant argues “a categorization of the one or more content items,
the one or more applications, or a combination based, at least in part, on an
association with the one or more primary activities, the one or more
secondary activities, the one or more peripheral activities, or a combination
thereof,” as recited in dependent claim 2 (emphasis added), is not disclosed
in Moon (App. Br. 13). According to Appellant, Moon does not describe a
categorization based on an association with activities {id.).
The Examiner finds Moon “provides for numerous categorizations of
content items” (Ans. 13—14). We are not persuaded by Appellant’s
arguments. The Examiner has made specific findings and Appellant has not
persuaded us these findings are in error. Indeed, Moon discloses in Figures
2 and 3, categorization of a content item based, at least in part, on an
association with the primary activity. Thus, Appellant has not persuaded us
Moon fails to disclose the limitation as recited in claim 2 and
commensurately recited in claim 12.
7
Appeal 2015-008126
Application 13/538,289
The remaining dependent claims were not separately argued and, thus,
these claims fall with their respective independent claims. Accordingly, we
sustain the rejection of claims 1, 2, 9—12, 19, and 20 under
35 U.S.C. § 102(b) for anticipation by Moon.
35 U.S.C. § 103(a): Claims 3—7, and 13—17 and Claims 8 and 18
Appellant does not separately argue the rejection of dependent claims
3—7, and 13—17 or the rejection of claims 8 and 18. Therfore, for the reasons
set forth above, we sustain the rejections of claims 3—7, and 13—17 under
35 U.S.C. § 103(a) for obviousness over Moon and Purdy and the rejection
of claims 8 and 18 under 35 U.S.C. § 103(a) for obviousness over Moon and
Zainul.
DECISION
The Examiner’s rejection of claims 1, 2, 9—12, 19, and 20 under 35
U.S.C. § 102(b) as being anticipated by Moon is affirmed.
The Examiner’s rejection of claims 3—7, and 13—17 under 35 U.S.C. §
103(a) as being unpatentable over Moon and Purdy is affirmed.
The Examiner’s rejection of claims 8 and 18 under 35 U.S.C. § 103(a)
as being unpatentable over Moon and Zainul is affirmed.
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
8