Ex Parte Crawford et al

Patent Trial and Appeal Board

Apr 6, 2016

12075478 (P.T.A.B. Apr. 6, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
12/075,478 03/1112008
63649 7590 04/08/2016
DISNEY ENTERPRISES, INC.
C/O FARJAMI & FARJAMI LLP
26522 LA ALAMEDA A VENUE, SUITE 360
MISSION VIEJO, CA 92691
FIRST NAMED INVENTOR
David Crawford
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
0260143 3098
EXAMINER
JASMIN, LYNDA C
ART UNIT PAPER NUMBER
3629
NOTIFICATION DATE DELIVERY MODE
04/08/2016 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):
docketing@farj ami. com
farjamidocketing@yahoo.com
ffarj ami @farj ami. com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte DAVID CRAWFORD, DAVID DURHAM, and JON GEORGES
Appeal2013-008450
Application 12/075,478 1
Technology Center 3600
Before MURRIEL E. CRAWFORD, ANTON W. PETTING, and ROBERT
J. SILVERMAN, Administrative Patent Judges.
SILVERMAN, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
The Appellants appeal under 35 U.S.C. § 134(a) from the Examiner's
decision rejecting claims 9, 10, 17, 18, 20-22, and 26-37. Appeal Br. 2.
Claims 1-8, 11-16, 19, and 23-25 have been canceled. Id. We have
jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM-IN-PART.
1 According to Appellants, the real party in interest is Disney Enterprises,
Inc. Appeal Br. 2.
Appeal2013-008450
Application 12/075,478
ILL US TRATIVE CLAiivI
9. A method for providing interactivity to a guest of a
theme park based on sensor measurement of the guest, the
method comprising:
sensing, using a sensor, variable biometric characteristics
of the guest located in a theme park ride and indicative of an
emotional state of the guest;
transmitting the variable biometric characteristics of the
guest indicative of the emotional state of the guest from the
sensor to a control system;
analyzing the variable biometric characteristics of the
guest utilizing the control system;
indicating an emotional state of the guest based on
analyzing the variable biometric characteristics of the guest;
and
modifying a venue variable of the theme park ride by the
control system according to the guest emotional state and
without measuring any intentional input from the guest.
CITED REFERENCES
The Examiner relies upon the following references:
Henry
Fernandez
Sweatman et al.
(hereinafter "Sweatman")
US 7,497,784 B2
US 7,577,636 B2
US 2007101 06484 A 1
REJECTIONS
Mar. 3, 2009
Aug. 18, 2009
May 10, 2007
I. Claims 9, 10, 17, 21, 22, 32, 33, 35, and 36 are rejected under
35 U.S.C. § 103(a) as unpatentable over Fernandez and Henry. Final Action
2-7.
II. Claims 18 and 20 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Fernandez, Henry, and Sweatman. Final Action 7.
III. Claims 26-31, 34, and 37 are rejected under 35 U.S.C. § 103(a)
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Application 12/075,478
as unpatentable over Henry and Fernandez. Final Action 7-12.
FINDINGS OF FACT
We rely on and adopt the Examiner's findings stated in the Answer,
except where noted. Additional findings of fact may appear in the Analysis
below.
ANALYSIS
Rejection I
Claim 9
The Examiner rejected claim 9 as obvious over Fernandez and Henry.
Final Action 2--4.
Henry discloses a theme park ride, in which vehicles may be directed
in various paths by intentional choices of the riders (conveyed by vocal or
hand signals) or by determinations made without rider input (e.g., based on
the vehicle flow rate through the various paths of the ride). Henry, col. 24,
11. 20-54.
Fernandez discloses a media presentation system in which the
storyline can branch in multiple paths, based upon: intentional viewer input;
biometric sensing of a viewer's emotional state; or various external factors.
Fernandez, col. 9, 1. 53---col. 10, 1. 19.
The Appellants contend that the Examiner's proposed combination of
Henry and Fernandez is the result of hindsight that lacks a rationale for their
combination and thus fails to establish a prima facie case of obviousness.
Appeal Br. 7-14.
The Appellants' argument turns on the contention that Henry teaches
away from Fernandez's sensing of biometric characteristics of a participant's
emotional state. See Appeal Br. 8-11. According to the Appellants, the
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Application 12/075,478
choice of ride pathway in Henry "is made intentionally based on the
participant's explicit and express request" - an approach allegedly
antithetical to Fernandez's selection of a path by the detection of
unintentional emotional expressions. Id. at 9.
As the Examiner's analysis and reasoning reveals (Answer 5-7, 15-
22), the Appellants' argument is not persuasive. As the Examiner explains,
Henry does not rigidly maintain the participant's ability to intentionally
choose every change of course. Answer 18-19. Rather, Henry allows such
changes where the participants have no say in the matter whatsoever- e.g.,
for the management of flow capacity through a ride. Answer 19 (citing
Henry, col. 24, 11. 43-54). Moreover, Fernandez is not dedicated entirely to
the use of unintentional biometric data to determine the storyline path;
Fernandez also discloses the use of deliberate viewer selection and selection
based upon external factors. See Fernandez, col. 9, 1. 61---col. 10, 1. 9.
Further, Henry does not "teach away" from Fernandez, because Henry
"does not 'criticize, discredit, or otherwise discourage' investigation into"
the use of biometric sensing of emotional indicia. DePuy Spine, Inc. v.
Medtronic Sofamor Danek, Inc., 567 F.3d 1314, 1327 (Fed. Cir. 2009)
(quoting In re Fulton, 391F.3d1195, 1201 (Fed. Cir. 2004)).
Accordingly, the Examiner has demonstrated that it would have been
reasonable for a person of skill in the art to combine a multiple-storyline
path selection technique of Fernandez (biometric sensing of emotional
indicia) with Henry's multiple-path theme park ride. As the Examiner
explains, Fernandez's use of biometrics to adapt a media presentation to a
viewer's emotional experience coincides with Henry's goal of creating
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Application 12/075,478
theme park rides that are not purely passive and that do not follow a
predetermined path. Answer 16-22.
The Examiner's rejection of claim 9 is sustained.
Claims 10, 17, 21, and 22
The Appellants raise no argument for claims 10, 17, 21, and 22
separate from the arguments presented for claim 9. Appeal Br. 14.
Accordingly, the rejection of claims 10, 17, 21, and 22 is also sustained.
Claims 32 and 33
Dependent claims 32 and 33 add (to their base claims- independent
claims 9 and 21 respectively) that the claimed modification of the "venue
variable of the theme park ride" "affect[ s] a physical change of the theme
park in direct response to the guest emotional state." Appeal Br. 19-20, 22-
23, Claims App.
The Examiner argues that claims 32 and 33 would have been obvious
over a combination of Fernandez and Henry, because the added limitations
correspond to Fernandez's disclosure of a media presentation in which
changes are made to house lights or curtains "based on the scene that is
ultimately selected by the biometric emotional recognition script variation."
Final Action 5. See also Answer 23.
Yet, the Appellants point out that such changes of Fernandez respond
to meta-data tags in recorded audio or video content- rather than "in direct
response to the guest emotional state," per claims 32 and 33. Appeal Br. 14.
The Appellants' argument is persuasive. Even though, as the
Examiner argues, the storyline branches may be determined based upon
biometric signals (see Answer 23), Fernandez's changes to house lights or
curtains are not characterized as being responsive to a guest's emotional
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Application 12/075,478
state at all (see Fernandez, col. 10, 1. 62---col. 11, 1. 23)-let alone in "direct
response" thereto, as claims 32 and 33 require.
The Examiner's rejection of claims 32 and 33 is not sustained.
Claims 35 and 36
Dependent claims 3 5 and 3 6 add (to their base claims - independent
claims 9 and 21 respectively) that a determination is made "that the guest is
within a sensing range of the sensors, prior to" sensing a guest's biometric
characteristics. Appeal Br. 19-20, 23, Claims App.
The Examiner argues that claims 35 and 36 would have been obvious
over a combination of Fernandez and Henry, because the added limitations
correspond to Henry's disclosure of theme park ride elements (e.g., "water
cannons") that are activated when a vehicle is within a predetermined range.
See Final Action 6-7 (citing Henry, col. 46, 1. 58---col. 47, 1. 20).
The Appellants contend that Henry's sensing of a vehicle for the
purpose of triggering a theme park element is "not relevant" to the
limitations of claims 35 and 36, such that the Examiner failed to establish a
prima facie case of obviousness. Appeal Br. 14--15. Indeed, neither the
Final Action (pages 6-7) nor the Answer (pages 9, 24) point to any
disclosure in Henry where a determination of a guest being "within sensing
range" occurs "prior to" any type of sensing - let alone the claimed
biometric sensing.
The Examiner's rejection of claims 35 and 36 is not sustained.
Rejection II
The Appellants raise no argument for claims 18 and 20 separate from
the arguments for claim 9. Appeal Br. 15. Because the rejection of claim 9
is sustained herein, the rejection of claims 18 and 20 is also sustained.
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Rejection III
Claims 26--31 and 34
Independent claim 26 is similar to independent claims 9 and 21 and
the Appellants raise no additional arguments in regard to claim 26. Appeal
Br. 16-17. Accordingly, for the same or similar reasons presented herein in
regard to claim 9, the Examiner's rejection of claim 26 is sustained.
Likewise, the Appellants raise no additional arguments in regard to
claims 27-31 and 34. Appeal Br. 17. Accordingly, the rejection of claims
27-31 and 34 is also sustained.
Claim 37
Dependent claim 3 7 adds a limitation similar to those in claims 3 5 and
36. See Appeal Br. 23, Claims App. See also Appeal Br. 17. For the same
or similar reasons set forth herein in regard to claims 35 and 36, the
Examiner's rejection of claim 37 is not sustained.
DECISION
We AFFIRM the Examiner's decision rejecting claims 9, 10, 17, 18,
20-22, 26-31, and 34.
We REVERSE the Examiner's decision rejecting claims 32, 33, and
35-37.
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-IN-PART
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