Ex Parte Davis

Patent Trial and Appeal Board

Mar 2, 2017

13765546 (P.T.A.B. Mar. 2, 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.
13/765,546 02/12/2013 Andrew Peter Davis DAVS-l-1030 7926
25315 7590 03/06/2017
LOWE GRAHAM JONES, PLLC
701 FIFTH AVENUE
SUITE 4800
SEATTLE, WA 98104
EXAMINER
HUSON, JOSHUA DANIEL
ART UNIT PAPER NUMBER
3644
NOTIFICATION DATE DELIVERY MODE
03/06/2017 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):
patentdocketing@lowegrahamjones.com
docketing-patent@lowegrahamjones.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte ANDREW PETER DAVIS
Appeal 2015-005295
Application 13/765,546
Technology Center 3600
Before JENNIFER D. BAHR, LINDA E. HORNER, and
BRANDON J. WARNER, Administrative Patent Judges.
HORNER, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Andrew Peter Davis (Appellant) seeks our review under 35 U.S.C.
§ 134 of the Examiner’s decision rejecting claims 1—6, 10-12, 27, 28, and
31—36, as set forth in the Final Action dated May 16, 2014 (“Final Act.”).1
We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM-IN-PART.
1 Claims 13, 14, 17—26, and 29 have been withdrawn from consideration and
are not before us in the present appeal.
Appeal 2015-005295
Application 13/765,546
CLAIMED SUBJECT MATTER
Appellant’s claimed subject matter relates “to systems, devices, and
methods for communicating with a pet.” Spec., para. 2. Of those claims
before us on appeal, claims 1 and 27 are independent. Claim 1, reproduced
below, is illustrative of the subject matter on appeal.
1. An apparatus for communicating with a pet, comprising:
a treat bin;
a food tray that receives treats from the treat bin;
an audio device;
a delivery module that:
receives a treat delivery command; and
in response to the received treat delivery command:
delivers a treat to the food tray;
plays via the audio device a prerecorded
audio signal that notifies the pet of the presence of
a treat in the food tray;
receives input indicating that the pet accesses
the food tray to obtain the treat; and
continues playing the audio signal until
receipt of the input indicating that the pet accesses
the food tray to obtain the treat;
a training control that, when selected by a user, transmits
to the delivery module the treat delivery command to deliver a
treat to the food tray and play an audio signal,
wherein the apparatus:
in response to a communication command received
from a remote client device, transmits the treat delivery
command to the delivery module;
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plays at least one of live audio or video received
from a user of the remote client device; and
transmits to the remote client device at least one of
live audio or video of the pet.
REJECTIONS
1. Claims 1, 3—6, 27, and 31—34 under 35 U.S.C. § 103(a) as
unpatentable over Bloksberg (US 2008/0282988 Al, pub. Nov. 20,
2008) and Kates (US 2006/0011145 Al, pub. Jan. 19, 2006).
2. Claims 2, 12, and 28 under 35 U.S.C. § 103(a) as unpatentable
over Bloksberg, Kates, and Block (US 6,904,868 B2, iss. June 14,
2005) .
3. Claim 10 under 35 U.S.C. § 103(a) as unpatentable over
Bloksberg, Kates, and Russoniello (US 2011/0018994 Al, pub.
Jan. 27, 2011).
4. Claims 11 and 36 under 35 U.S.C. § 103(a) as unpatentable over
Bloksberg, Kates, Tolner (US 2006/0208910 Al, pub. Sept. 21,
2006) and Sundararajan (US 7,263,953 B2, iss. Sept 4, 2007).
5. Claim 35 under 35 U.S.C. § 103(a) as unpatentable over
Bloksberg, Kates, and Tolner.
ANALYSIS
First Ground of Rejection: Obviousness based on Bloksberg and Kates
Appellant argues the claims subject to the first ground of rejection as a
group, and presents additional arguments for dependent claims 5 and 31—33.
Appeal Br. 5—13. We select claim 1 as representative of the group, with
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claims 3, 4, 6, 27, and 34 standing or falling with claim 1. See 37 C.F.R.
§ 41.37(c)(l)(iv). We address the separate arguments for claims 5 and 31—
33 below.
Claims 1, 3, 4, 6, 27, and 34
The Examiner found that Bloksberg discloses an apparatus for
communicating with a pet comprising, inter alia, “a training control (Fig. 1
#112) that, when selected by a user, transmits to the delivery module the
treat delivery command to deliver a treat to the food tray and play and [sic]
audio signal.” Final Act. 3. The Examiner clarifies, in the Answer, that
Bloksberg’s wifi communication subsystem 112 “indicates] the
transmission pathway by which a selected training control (selected by a
user via devices 114, 116, 118 and associated buttons 214, 218) travels to
initiate a treat delivery command.” Ans. 3; see also id. (the Examiner
explaining that Figure 2 of Bloksberg “shows training controls on a remote
client device 114, 116 screen 200”). The Examiner acknowledged that
Bloksberg does not disclose that “the delivery module receives input
indicating that the pet accesses the food tray to obtain the treat[] and
continues to play an audio signal until receipt of the input indicating that the
pet accesses the food tray to obtain the treat.” Final Act. 3. However, the
Examiner found:
Kates teaches an interactive pet system including a
delivery module 122 that receives a treat delivery command; and
in response to the received treat delivery command: delivers a
treat to the food tray; plays via the audio device a prerecorded
audio signal that notifies the pet of the presence of a treat in the
food tray (Para 189, [#]511); receives input indicating that the
pet accesses the food tray to obtain the treat (Para 189, #503).
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Furthermore, Kates[’s] interactive system teaches continuing to
play an audio signal until receiving] input indicating that the pet
has properly responded to the audio signal (Para 167).
Id. at 3^4. The Examiner determined that it would have been obvious to one
of ordinary skill in the art to modify “the delivery module as taught by
Bloksberg with the system signaling and control mechanism as taught by
Kates to recognize when the pet has properly responded to the stimuli in
order to conserve system energy and provide proper positive reinforcement
to the pet when a task has been performed.” Id. at 4.
Appellant argues that Bloksberg does not teach or suggest “a training
control,” as called for in claim 1. Appeal Br. 5—8. In particular, Appellant
asserts that control screen 200 includes open button 214 for releasing a treat
and talk button 210 for providing audio communication to a pet, but neither
button causes the claimed sequence of operations. Id. at 7—8 (citing
Bloksberg, para. 27); see also id. at 10-11 (Appellant asserting that “control
screen 200 includes separate buttons for different functions, such as a first
button to open a treat dispenser, a second button to close the treat dispenser,
a third button to talk, and so on”) (emphasis omitted). According to
Appellant, Bloksberg “does not teach or suggest the four specific functions
initiated by operation of the recited ‘training control.’” Id. at 8; see also id.
(Appellant asserting that Bloksberg does not disclose playing an audio signal
“as part of a sequence of four specific operations (delivery, playing sound,
receiving input, continue playing)”).
Appellant’s argument against Bloksberg is not persuasive of error
because it fails to address the Examiner’s rejection as presented, which is
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based on a determination of what would have been obvious to one of
ordinary skill in the art in view of the combined teachings of the prior art.
Final Act. 2-4. One cannot show nonobviousness by attacking references
individually where the rejections are based on combinations of references.
See In re Merck & Co., 800 F.2d 1091, 1097 (Fed. Cir. 1986) (citing In re
Keller, 642 F.2d 413, 425 (CCPA 1981)). As discussed supra, the Examiner
relied on Bloksberg for disclosing an apparatus for communicating with a
pet having user-selectable controls to deliver a treat to the food tray and play
a prerecorded audio signal. Final Act. 3; see also Ans. 7 (citing Bloksberg,
para. 27) (the Examiner explaining that function control 218 is
programmable to deliver the treat and play prerecorded audio in combination
or in sequence). The Examiner relied on Kates for disclosing a treat
dispenser that, in response to a delivery command, delivers a treat to a tray,
plays a prerecorded sound to alert the pet, and receives input indicating that
the pet accessed the tray. Final Act. 3; Ans. 4—5 (citing Kates, para. 189).
The Examiner also relied on Kates for teaching that it was known in the art
at the time of the invention to continue playing an audio command until a
pet responds in a desired manner. Final Act. 3^4; see also Ans. 9 (the
Examiner explaining that Kates’s “system is configured to continue playing
an audio signal (‘GO HOME! ’ Para 167) until receipt of input indicating that
the pet has properly responded to the audio signal of the particular training
system component (has begun moving back to the containment area)”).
Appellant argues that Kates does not disclose continuing to play the
audio signal until receiving input indicating that the pet accessed the food
tray. Appeal Br. 9; Reply Br. 2—\. In particular, Appellant asserts that
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“[tjhere is no indication that Kates’s treat dispenser continues playing until
the treat dispenser senses that the dog has retrieved the treat.” Reply Br. 3
(citing Kates, para. 189). Appellant also asserts that “the trigger to stop
playing sound in Kates is very different than that recited by the claims,”
because “Kates stops playing when the pet turns towards the containment
region, not when the pet reaches the containment region, or ‘accesses the
food tray,’ in the language of the claims.” Id. at 4 (emphasis omitted) (citing
Kates, para. 167).
Appellant’s argument is not persuasive of error because it does not
address the Examiner’s determination that, based on the teachings of Kates,
one of ordinary skill in the art would have been led to modify the system of
Bloksberg to release a treat, play a prerecorded audio signal, and continue
playing the audio signal until receiving an input that the pet accessed the
food tray. See Final Act. 4 (the Examiner explaining that such a
modification would “conserve system energy and provide proper positive
reinforcement to the pet when a task has been performed”). In this regard,
we agree with the Examiner that it would have been obvious to apply
Kates’s sensor for detecting the action of a pet accessing the food tray and
Kates’s disclosed function of continuing to play an audio signal until a pet
performs a particular desired action to the system of Bloksberg. Final
Act. 4; see Ans. 9 (the Examiner explaining that the rejection proposes
“applying the sensor input 503 of Kates[’s] delivery module 122 with the
further step of continuously playing the audio signal until receipt of input by
the pet of Kates containment system (Para 167) as an obvious component of
the delivery module of Bloksberg”). “[I]f a technique has been used to
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improve one device, and a person of ordinary skill in the art would recognize
that it would improve similar devices in the same way, using the technique is
obvious unless its actual application is beyond his or her skill.” KSR hit 7
Co. v. Teleflex Inc., 550 U.S. 398, 417 (2007). Here, the improvement to the
treat dispenser of Bloksberg’s system by adding Kates’s sensor for detecting
the action of a pet accessing the food tray and Kates’s function of continuing
to play an audio signal until a pet performs a particular action amounts to
nothing more than the predictable use of prior art elements according to their
established functions. Id. Moreover, Appellant has not asserted, nor pointed
to any evidence, that applying Kates’s teachings to Bloksberg’s system
would have been beyond the level of skill of one of ordinary skill in the art.
Additionally, we are not persuaded by Appellant’s contention (Appeal
Br. 9; Reply Br. 4) that there is a significant distinction between stopping the
audio signal when the pet turns towards the containment area, as taught by
Kates, and when the pet returns to the containment area. Both operations
involve stopping the audio signal when a pet performs a particular response
or action. In other words, Kates provides sufficient evidence that it was
known in the art at the time of the invention to continue playing an audio
signal until a receiving input that a particular desired response or action by a
pet has occurred, whether it be returning to a containment area, turning
towards a containment area, or some other action (e.g., accessing a food
tray). As the Examiner explains, “[t]he animal learns to associate a signal
(audio) with properly performing a desire[d] command,” which is “the basis
of animal (specifically dog) training known in the art.” Ans. 6. Thus,
Appellant does not apprise us of error in the Examiner’s findings as to the
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disclosure of Kates, which are supported by a preponderance of the
evidence.
Appellant argues that the Examiner improperly combined elements
from separate embodiments of Kates without sufficient reasoning. Appeal
Br. 9-10; see id. at 10 (Appellant asserting that “the Examiner has given no
principled reason why one skilled in the art would select and modify
teachings from distinct systems and devices within Kates”) (emphasis
omitted). According to Appellant, modifying Kates to meet the claims
would render Kates inoperable for its intended purpose of training a pet. Id.;
Reply Br. 4—5. Appellant’s argument is misplaced because, as discussed
supra, the Examiner did not propose modifying Kates; rather, the Examiner
determined that it would have been obvious to one of ordinary skill in the art
to modify Bloksberg’s system based on the teachings of Kates. Final Act.
3^4. The Examiner articulated adequate reasoning having rational
underpinnings in support of the proposed modification of Bloksberg (Final
Act. 4), and Appellant does not specifically address this reasoning or explain
why the reasoning is in error. Moreover, Appellant does not offer any
evidence or persuasive technical reasoning to establish that, based on the
teachings of Kates, the Examiner’s proposed modification of Bloksberg’s
system would render it inoperable as a pet entertainment and training
system.
Appellant also argues that Bloksberg teaches away from performing a
sequence of multiple functions responsive to a single command because
“control screen 200 includes separate buttons for different functions, such as
a first button to open a treat dispenser, a second button to close the treat
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dispenser, a third button to talk, and so on.” Appeal Br. 10-11 (emphasis
omitted). Appellant also asserts that the Examiner’s rejection is based on
impermissible hindsight. Id. at 11.
Appellant’s argument that Bloksberg teaches away from the claimed
invention is not persuasive because it does not point out why a person of
ordinary skill, upon reading the reference, would be led in a direction
divergent from the path taken by Appellant. See In re Gurley, 27 F.3d 551,
553 (Fed. Cir. 1994). Prior art does not teach away from claimed subject
matter merely by disclosing a different solution to a similar problem, unless
the prior art also criticizes, discredits, or otherwise discourages the solution
claimed. See In re Fulton, 391 F.3d 1195, 1201 (Fed. Cir. 2004) (mere
disclosure of more than one alternative does not constitute a teaching away
from any of these alternatives). Although Bloksberg describes multiple
buttons controlling different functions (Bloksberg, para. 27), such disclosure
does not constitute a teachi ng away from executing multiple functions in
response to a single command. As discussed supra, Bloksberg specifically
discloses using function control 218 to control a combination or sequence of
functions. Id. Additionally, we are not persuaded by Appellant’s assertion
of impermissible hindsight because Appellant does not identify any
knowledge relied upon by the Examiner that was gleaned only from
Appellant’s disclosure and that was not otherwise within the level of
ordinary skill at the time of the invention. See In re McLaughlin, 443 F.2d
1392 (CCPA1971).
For the above reasons, Appellant has not demonstrated error in the
Examiner’s determination that the subject matter of claim 1 would have been
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obvious. Accordingly, we sustain the rejection of claim 1, and of claims 3,
4, 6, 27, and 34 falling therewith, under 35 U.S.C. § 103(a) as unpatentable
over Bloksberg and Kates.2
Claim 5
Appellant argues that “Bloksberg does not describe how the wi-fi
subsystem 112 (training control) can possibly be ‘selected by’ the button
214” because “button 214 in no way selects the wi-fi subsystem 112.”
Appeal Br. 12; see also Final Act. 4 (the Examiner finding that “Bloksberg
teaches that the training control is selected by at least one of a button (Para[.]
27 and Fig[.] 2 #214) or a voice command”). This argument, which is
substantially similar to an argument raised for patentability of claim 1 (see
Appeal Br. 5—8), is not persuasive for the same reasons discussed supra in
the analysis of the rejection of claim 1. In particular, the Examiner found
that Bloksberg’s wifi communication subsystem 112 “indicates] the
transmission pathway by which a selected training control (selected by a
user via devices 114, 116, 118 and associated buttons 214, 218) travels to
initiate a treat delivery command.” Ans. 3; see also id. (the Examiner
explaining that Figure 2 of Bloksberg “shows training controls on a remote
client device 114, 116 screen 200”). Accordingly, we sustain the rejection
of claim 5 under 35 U.S.C. § 103(a) as unpatentable over Bloksberg and
Kates.
2 Should Appellant wish to pursue further prosecution of these claims, we
note that the phrase “the remote client device” in independent claim 27 lacks
adequate antecedent basis.
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Claims 31 and 32
Claim 31 recites that “the system begins transmission to the remote
client device of at least one of the audio or video of the pet in response to
input from the pet.” Appeal Br. 21 (Claims App.). Claim 32 depends from
claim 31 and recites that the “input from the pet comprises access to the food
tray by the pet.” Id. at 22. The Examiner found that “Bloksberg in view of
Kates teaches that the system begins transmission to the remote client device
of at least one of the audio or video of the pet in response to input from the
pet (Fig. 2 #202A).” Final Act. 6. The Examiner also found that “Kates
teaches input from the pet comprises access to the food tray by the pet (Para
180).” Id.
We find persuasive Appellant’s argument (Appeal Br. 12) that the
cited portions of Bloksberg and Kates do not disclose the system beginning
an audio or video transmission to a remote client in response to input from a
pet. Bloksberg discloses, with reference to Figure 2, that “pet entertainment
centers 102A and 102B are viewable via the Internet through two web
cameras (not shown), and functions of the cameras and centers 102A and
102B are individually controllable by commands either programmed or
inputted in real-time via the control screen.” Bloksberg, para. 25.
According to Bloksberg, “the remote pet owner may observe the vicinity of
pet entertainment center 102A through camera 1 image 202A.” Id., para. 26.
To the extent that Bloksberg discloses transmitting a video signal to a
remote client, Bloksberg does not disclose that the video transmission begins
in response to input from a pet, as called for in claims 31 and 32. The
Examiner’s reliance on Kates does not remedy this deficiency of Bloksberg.
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Paragraph 180 of Kates discloses that system 100 will initiate a game or play
a video if the dog makes a sound or motions indicating that it is bored or
wants to play. Kates, para. 180. Although Kates discloses playing a video
in response to input from a pet, Kates does not disclose beginning a video
transmission to a remote client in response to a pet input. Thus, there is
insufficient evidence to support the Examiner’s finding that “Bloksberg in
view of Kates teaches that the system begins transmission to the remote
client device of at least one of the audio or video of the pet in response to
input from the pet.” Final Act. 6. The Examiner does not articulate any
reasoning with rational underpinning as to why such a feature would have
been obvious to one of ordinary skill in the art.
For these reasons, we do not sustain the rejection of claims 31 and 32
under 35 U.S.C. § 103(a) as unpatentable over Bloksberg and Kates.
Claim 33
Appellant argues that Figure 2 of Bloksberg does not disclose that
“the delivery module plays via the audio device spoken commands such that
the pet hears both the spoken commands played by the audio device and
spoken commands uttered by the user,” as called for in claim 33. Appeal Br.
13; see also Final Act. 6 (the Examiner citing Figure 2 of Bloksberg and
explaining that claimed function occurs “when the user is in the same room
as the delivery module and using the remote control”). Appellant asserts
that “Bloksberg teaches the opposite: FIGURE 1 plainly shows devices 114
and 116 operated remote from the home.” Appeal Br. 13 (emphasis omitted)
(citing Bloksberg, para. 23). According to Appellant, “showing that a
claimed function is capable of being performed by using the prior art is not a
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sufficient basis for an obviousness rejection.” Id. (emphasis omitted) (citing
In re Giannelli, 739 F.3d 1375 (Fed. Cir. 2014)).
Appellant’s reliance on Giannelli is misplaced. In Giannelli, the court
determined that the phrase “adapted to,” in view of the specification, has a
narrower meaning than “capable of’ or “suited for.” In re Giannelli, 739
F.3d at 1379 (contrasting the narrower meaning of “adapted to” as meaning
“made to,” “designed to,” or “configured to,” with the broader meaning of
“capable of or “suitable for”). Unlike in Giannelli, claim 33 does not recite
that the delivery module is “adapted to” perform a particular function.
Claim 33 requires only that the delivery module be capable of playing
spoken commands through the audio device such that the pet hears spoken
commands played by the audio device and uttered by the user. To the extent
that the language of claim 33 implies any structural feature, such structure
appears to be limited to portability of the client device used by an owner to
provide spoken commands. See Spec. para. 48 (describing a training process
in which “the user give[s] commands via a mobile client device while in the
room with the dog and the ICCS”).
In this regard, Bloksberg discloses station 300 playing spoken
commands from an owner through speaker 308. Bloksberg, para. 31. The
owner provides the spoken commands to speaker 308 by pressing talk button
210 using an Internet-capable device, such as mobile PDA 116. Id., paras.
23, 26. Because the PDA 116 is portable, the user is able to provide these
spoken commands while standing in the same room as the dog, in which
case, the dog would hear both the commands played by the audio device via
speaker 308 and the commands uttered by the user.
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Thus, we are not persuaded of error in the Examiner’s finding that
Bloksberg discloses the subject matter of claim 33, which is supported by
a preponderance of the evidence. Accordingly, we sustain the rejection of
claim 33 under 35 U.S.C. § 103(a) as unpatentable over Bloksberg and
Kates.
Second Ground of Rejection: Obviousness based on Bloksberg, Kates, and
Block
Claim 2
Appellant relies on the same arguments presented for patentability of
claim 1, from which claim 2 depends. Appeal Br. 13. For the same reasons
discussed supra in our analysis of the rejection of claim 1, these arguments
are not persuasive of error. Accordingly, we sustain the rejection of claim 2
under 35 U.S.C. § 103(a) as unpatentable over Bloksberg, Kates, and Block.
Claims 12 and 28
Claims 12 and 28 recite “an audio speaker that is in proximity to the
housing.” Appeal Br. 17, 20 (Claims App.). The Examiner found that
“Bloksberg teaches ... an audio speaker that is in proximity to the housing.”
Final Act. 7—8. The Examiner also found that “Kates teaches an audio
speaker that is in proximity to the housing.” Id. at 8. However, the
Examiner does not indicate where in Bloksberg or Kates this feature is
disclosed.
Bloksberg discloses that station 300 includes speaker 308 within the
same housing as, for example, the microphone and treat bin. Bloksberg,
paras. 30—33, Fig. 3. Kates discloses that system 100 includes loudspeakers
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107 for providing audio commands, but Kates does not mention whether the
loudspeakers 107 are located within the same housing as other components,
such as a treat bin, or merely in proximity to such a housing. Kates, para.
38—39. We understand “in proximity to” to mean that the speaker is near the
housing, but that the speaker is not housed within the housing along with the
other recited components. Although the cited references disclose speakers
as a part of each system, we find insufficient evidence to support the
Examiner’s findings that each of Bloksberg and Kates discloses an audio
speaker in proximity to the housing.
Because the Examiner’s findings as to the scope and content of
Bloksberg and Kates are not supported by a preponderance of the evidence,
the Examiner has not adequately established that the subject matter of claims
12 and 28 would have been obvious to one of ordinary skill in the art. For
this reason, we do not sustain the rejection of claims 12 and 28 under
35 U.S.C. § 103(a) as unpatentable over Bloksberg, Kates, and Block.
Third through Fifth Grounds of Rejection: Obviousness based on
Bloksberg, Kates, and one or more of Russoniello, Tolner, and
Sundararajan
Appellant presents no additional arguments for patentability of claims
10, 11,35, and 36 subject to the third, fourth, and fifth grounds of rejection;
instead, relying on dependency of these claims from one of independent
claims 1 and 27. Appeal Br. 14. For the same reasons discussed supra in
our analysis of claims 1 and 27, Appellant does not apprise us of error in the
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rejections under 35 U.S.C. § 103(a) of claims 10, 11,35, and 36, which we
sustain.
DECISION
The decision of the Examiner to reject claims 1—6, 10, 11, 27, and 33—
36 is AFFIRMED.
The decision of the Examiner to reject claims 12, 28, 31, and 32 is
REVERSED.
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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