REALEYES OÜ

Patent Trials and Appeals BoardAug 31, 2021

2020000131 (P.T.A.B. Aug. 31, 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. 15/029,983 04/15/2016 Elnar HAJIYEV 00410/003890-US0 1666 76808 7590 08/31/2021 Leason Ellis LLP One Barker Avenue Fifth Floor White Plains, NY 10601-1526 EXAMINER CORBO, NICHOLAS T ART UNIT PAPER NUMBER 2424 NOTIFICATION DATE DELIVERY MODE 08/31/2021 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): uspto@leasonellis.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE _____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD _____________ Ex parte ELNAR HAJIYEV and MARTIN SALO 1 _____________ Appeal 2020-000131 Application 15/029,983 Technology Center 2400 ______________ Before JOHN A. JEFFERY, JOHN A. EVANS, and CATHERINE SHIANG, Administrative Patent Judges. EVANS, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE This is a decision on appeal under 35 U.S.C. § 134(a) from the Examiner’s final rejection of claims 1–11 and 20–31. Appeal Br. 1. We have jurisdiction over the pending claims under 35 U.S.C. § 6(b). We AFFIRM IN PART. 1 We use the word “Appellant” to refer to “applicant” as defined in 37 C.F.R. § 1.42 (2018). The Appeal Brief identifies REALEYES OÜ, as the real party in interest. Appeal Br. 1. Appeal 2020-000131 Application 15/029,983 2 INVENTION The invention is directed to a method for activating a data recording component on the computing device to receive information relating to the environment of the computer user. See Abstract. Claims 1, 7, and 26 are independent. Illustrative claim 1 is reproduced below with some formatting added. 1. A method of performing environmental quality analysis as part of the initiation of a computer user behavioral data collection process during an interaction between a computer user and a computing device, the method comprising: activating a data recording component on the computing device to detect information relating to the environment of the computer user; executing a quality check module in the computing device operative to analyze the environment of the computer user, based on the information detected by the data recording component, wherein the quality check module performs the steps of: assessing a received signal from the data recording component against a predetermined minimum quality metric by comparing an informational content of the received signal to the predetermined minimum quality metric to ascertain if computer user behavioral data comprising information indicative of the computer user's emotional state can be collected therefrom, determining and executing a responsive action to improve a quality of the informational content of the received signal with regard to the minimum quality metric when the received signal does not satisfy the quality metric, wherein executing the responsive action comprises any one or more of: Appeal 2020-000131 Application 15/029,983 3 displaying a prompt at the computing device, wherein the prompt instructs an adjustment to improve the quality of the received signal, activating another data recording component to collect the computer user behavioral data, and adjusting collection parameters for the data recording component to improve the quality of the received signal, and initiating a computer user behavioral data collection process comprising: extracting the computer user behavioral data from the received signal during a subsequent interaction between the computer user and the computing device where the received signal satisfies the quality metric, wherein the extracted computer user behavioral data comprises information indicative of the computer user’s emotional state. Appeal Br. 35–36 (Claims App.). PRIOR ART Appeal 2020-000131 Application 15/029,983 4 Name2 Reference Date Kurland US 4,603,232 July 29, 1986 Philomin US 2003/0081834 A1 May 1, 2003 Suryanarayana US 2008/0240384 A1 Oct. 2, 2008 Sakata US 2011/0209066 A1 Aug. 25, 2011 McCarthy US 2011/0293113 A1 Dec. 1, 2011 Dougall US 2012/005664 A1 Mar. 1, 2012 Cheung US 2013/0290993 A1 Oct. 31, 2013 Kim US 2014/0119618 A1 May 1, 2014 Nielsen US 2014/0250448 A1 Sept. 4, 2014 Xiong US 2014/0257788 A1 Sept. 11, 2014 REJECTIONS3 AT ISSUE4 1. Claims 1–3, 11, 22, 26, 27, and 28 stand rejected under 35 U.S.C. § 103 as obvious over Suryanarayana, Philomin, Kim, and Dougall. Final Act. 2–7. 2. Claims 4–6 stand rejected under 35 U.S.C. § 103 as obvious over Suryanarayana, Philomin, Kim, Dougall, and Kurland. Final Act. 7– 9. 2 All citations herein to the references are by reference to the first named inventor/author only. 3 The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA. 4 Throughout this Decision, we refer to the Appeal Brief (“Appeal Br.”) filed April 29, 2019, the Final Office Action (“Final Act.”) mailed October 29, 2018, the Examiner’s Answer mailed July 23, 2019, and the Specification (“Spec.”) filed April 15, 2016. Appeal 2020-000131 Application 15/029,983 5 3. Claims 9 and 10 stand rejected under 35 U.S.C. § 103 as obvious over Suryanarayana, Philomin, Kim, Dougall, and Nielsen. Final Act. 9– 10. 4. Claims 20 and 25 stand rejected under 35 U.S.C. § 103 as obvious over Suryanarayana, Philomin, Kim, Dougall, and Applicant- Admitted Prior Art (AAPA). Final Act. 10–11. 5. Claim 21 stands rejected under 35 U.S.C. § 103 as obvious over Suryanarayana, Philomin, Kim, Dougall, and Cheung. Final Act. 11– 12. 6. Claim 23 stands rejected under 35 U.S.C. § 103 as obvious over Suryanarayana, Philomin, Kim, Dougall, and Sakata. Final Act. 12– 13. 7. Claim 24 stands rejected under 35 U.S.C. § 103 as obvious over Suryanarayana, Philomin, Kim, Dougall, and Xiong. Final Act. 13– 14. 8. Claim 29 stands rejected under 35 U.S.C. § 103 as obvious over Suryanarayana, Philomin, Kim, Dougall, and Xiong. Final Act. 14– 15. 9. Claims 7, 8, and 30 stand rejected under 35 U.S.C. § 103 as obvious over Suryanarayana, Philomin, Kim, Dougall, and Nielsen. Final Act. 15–18. 10. Claim 31 stands rejected under 35 U.S.C. § 103 as obvious over Suryanarayana, Philomin, Kim, Dougall, Nielsen, and McCarthy. Final Act. 18–20. Appeal 2020-000131 Application 15/029,983 6 ANALYSIS5 We have reviewed the rejections of Claims 1–11 and 20–31 in light of Appellant’s arguments that the Examiner erred. We review the appealed rejections for error based upon the issues identified by the Appellant and in light of the arguments and evidence produced thereon. Ex parte Frye, 94 USPQ2d 1072, 1075 (BPAI 2010) (precedential), cited with approval in In re Jung, 637 F.3d 1356, 1365 (Fed. Cir. 2011) (“[I]t has long been the Board’s practice to require an applicant to identify the alleged error in the examiner’s rejections.”). We have considered in this decision only those arguments Appellant actually raised in the Briefs. Any other arguments which the Appellant could have made but chose not to make in the Briefs are deemed to be forfeited. See 37 C.F.R. § 41.37(c)(1)(iv). We are persuaded of error. CLAIMS 1–3, 11, 22, 26, 27, AND 28: OBVIOUSNESS OVER SURYANARAYANA6, PHILOMIN, KIM, AND DOUGALL. Appellant asserts independent Claims 7 and 26 stand or fall with Claim 1. Appeal Br. 26, 27. Therefore, we decide the appeal of the § 103 rejection of the claims on the basis of Claim 1 and refer to the rejected claims7 collectively herein as “the claims.” See 37 C.F.R. § 41.37(c)(1)(iv); In re King, 801 F.2d 1324, 1325 (Fed. Cir. 1986). 6 Appellant and Examiner refer to this reference as “Sury.” 7 Except for Claim 28 which is separately-argued. See Appeal Br. 29. Appeal 2020-000131 Application 15/029,983 7 Analyzing the quality of the informational content of a received signal. Claim 1 recites, inter alia, “assessing a received signal from the data recording component against a predetermined minimum quality metric.” Claims 7 and 26 recite commensurate limitations. The Examiner finds Suryanarayana teaches this limitation. Ans. 4 (citing Suryanarayana, ¶ 64). Suryanarayana discloses: “[f]or example, the sensor data may indicate that the background noise level for the user/device is too high or the room lighting is inappropriate for a videoconferencing communication session.” Suryanarayana, ¶ 64 (cited by the Examiner). Appellant further argues the Examiner fails to cite teaching first addressing the problem of improving a low-quality signal such that information is extracted only after a responsive action is taken. Appeal Br. 19. The Examiner finds Suryanarayana discloses the claimed responsive actions. Ans. 4 (citing Suryanarayana, ¶¶ 16, 17, 53, 59). Independent Claim 1 recites, inter alia, “determining and executing a responsive action to improve a quality of the informational content of the received signal with regard to the minimum quality metric when the received signal does not satisfy the quality metric” (emphasis added). We find the term “when” is used in Claim 1 as a conjunction which The Merriam-Webster Dictionary defines as a conditional to mean “in the event that: IF.”8 Thus, we fail to see a meaningful distinction between 8 See MERRIAM-WEBSTER’S COLLEGIATE® DICTIONARY 1345–46 (10th ed. 1993) (defining “when,” in pertinent part, as “in the event that: IF”); see also Appeal 2020-000131 Application 15/029,983 8 “determining and executing a responsive action . . . when the received signal does not satisfy the quality metric” and “determining and executing a responsive action . . . if the received signal does not satisfy the quality metric.” Under its broadest reasonable interpretation, Claim 1 includes steps that only need to be performed if certain conditions are not met, i.e., “if the received signal does not satisfy the quality metric.” During examination, claims are given their broadest reasonable interpretation consistent with the specification. See In re Am. Acad. of Sci. Tech Ctr., 367 F.3d 1359, 1364 (Fed. Cir. 2004) (“Construing claims broadly during prosecution is not unfair to the applicant ... because the applicant has the opportunity to amend the claims to obtain more precise claim coverage”). Id. Based on the claim limitations as written, the broadest reasonable interpretation of Claim 1 encompasses an instance in which the method ends where a received signal satisfies the quality metric. See In re Schulhauser, Appeal No. 2013- 007847, at *9 (PTAB, April 28, 2016) (precedential) (holding “The Examiner did not need to present evidence of the obviousness of the remaining method steps of claim 1 that are not required to be performed under a broadest reasonable interpretation of the claim (e.g., instances in which the electrocardiac signal data is not within the threshold electrocardiac criteria such that the condition precedent for the determining step and the remaining steps of claim 1 has not been met.”). Therefore, the prior art need not determine and execute the recited quality improvement action to satisfy the claim. Merriam-Webster Dictionary Online https://www.merriam- webster.com/dictionary/when. Appeal 2020-000131 Application 15/029,983 9 In view of the foregoing, we sustain the rejection of Claims 1–3, 11, 22, and 28. Claims 26 and 27 recite a “computer program product” that must be at least capable of performing the recited quality improvement action functionality should the condition occur. The Examiner’s rejection fails to specify what disclosure in the citation to Suryanarayana is read upon by the claimed “responsive action . . . when the received signal does not satisfy the quality metric.” Suryanarayana focuses on determination of an availability of a user in paragraphs 16, 17, 53, and 59. For example, Paragraph 16 discloses: “[t]he first device 102 of the illustrated example is capable of reporting information about the presence of a first user of the first device 102 to the rich presence server 116 via the network 106 and the messaging infrastructure 112.” Similarly, Paragraph 53 discloses: “the subject may report that they are generally available, the sensors may indicate that the user is browsing a science related website, and the rules may indicate that the subject is only available for contact by others that are browsing similar websites.” These disclosures, cited generally by the Examiner, relate to the presence and availability of a user, but do not relate to a quality of a signal, as claimed. We find no disclosure in the cited portions of Suranarayana relating to the claimed “responsive action . . . when the received signal does not satisfy the quality metric,” nor does the Examiner so direct our attention. We, therefore, decline to sustain the rejection of Claims 26 and 27 Appeal 2020-000131 Application 15/029,983 10 CLAIMS 4–6: OBVIOUSNESS OVER SURYANARAYANA, PHILOMIN, KIM, DOUGALL, AND KURLAND. Appellant treats the independent claims together and relies on the independent claim arguments for the dependent claims; hence, the claims stand or fall together. C.W. Zumbiel Co., Inc. v. Kappos, 702 F.3d 1371, 1378 n.2 & 1381 n.4 (Fed. Cir. 2012); In re Dillon, 919 F.2d 688, 695 (Fed. Cir. 1990) (en banc); 37 C.F.R. § 41.37(c)(1)(vii) (2011). In view of the foregoing, we sustain the rejection of Claims 4–6. CLAIMS 9 AND 10: OBVIOUSNESS OVER SURYANARAYANA, PHILOMIN, KIM, DOUGALL, AND NIELSEN. Appellant treats the independent claims together and relies on the independent claim arguments for the dependent claims; hence, the claims stand or fall together. C.W. Zumbiel Co., Inc. v. Kappos, 702 F.3d 1371, 1378 n.2 & 1381 n.4 (Fed. Cir. 2012); In re Dillon, 919 F.2d 688, 695 (Fed. Cir. 1990) (en banc); 37 C.F.R. § 41.37(c)(1)(vii) (2011). In view of the foregoing, we sustain the rejection of Claims 9 and 10. CLAIMS 20 AND 25: OBVIOUSNESS OVER SURYANARAYANA, PHILOMIN, KIM, DOUGALL, AND APPLICANT-ADMITTED PRIOR ART. Appellant treats the independent claims together and relies on the independent claim arguments for the dependent claims; hence, the claims stand or fall together. C.W. Zumbiel Co., Inc. v. Kappos, 702 F.3d 1371, 1378 n.2 & 1381 n.4 (Fed. Cir. 2012); In re Dillon, 919 F.2d 688, 695 (Fed. Cir. 1990) (en banc); 37 C.F.R. § 41.37(c)(1)(vii) (2011). In view of the foregoing, we sustain the rejection of Claims 20 and 25. CLAIM 21: OBVIOUSNESS OVER SURYANARAYANA, PHILOMIN, KIM, DOUGALL, AND CHEUNG. Appeal 2020-000131 Application 15/029,983 11 Appellant treats the independent claims together and relies on the independent claim arguments for the dependent claims; hence, the claims stand or fall together. C.W. Zumbiel Co., Inc. v. Kappos, 702 F.3d 1371, 1378 n.2 & 1381 n.4 (Fed. Cir. 2012); In re Dillon, 919 F.2d 688, 695 (Fed. Cir. 1990) (en banc); 37 C.F.R. § 41.37(c)(1)(vii) (2011). In view of the foregoing, we sustain the rejection of Claim 21. CLAIM 23: OBVIOUSNESS OVER SURYANARAYANA, PHILOMIN, KIM, DOUGALL, AND SAKATA. Appellant treats the independent claims together and relies on the independent claim arguments for the dependent claims; hence, the claims stand or fall together. C.W. Zumbiel Co., Inc. v. Kappos, 702 F.3d 1371, 1378 n.2 & 1381 n.4 (Fed. Cir. 2012); In re Dillon, 919 F.2d 688, 695 (Fed. Cir. 1990) (en banc); 37 C.F.R. § 41.37(c)(1)(vii) (2011). In view of the foregoing, we sustain the rejection of Claim 23. CLAIMS 24 AND 29: OBVIOUSNESS OVER SURYANARAYANA, PHILOMIN, KIM, DOUGALL, AND XIONG. Appellant treats the independent claims together and relies on the independent claim arguments for the dependent claims; hence, the claims stand or fall together. C.W. Zumbiel Co., Inc. v. Kappos, 702 F.3d 1371, 1378 n.2 & 1381 n.4 (Fed. Cir. 2012); In re Dillon, 919 F.2d 688, 695 (Fed. Cir. 1990) (en banc); 37 C.F.R. § 41.37(c)(1)(vii) (2011). In view of the foregoing, we sustain the rejection of Claims 24 and 29. CLAIMS 7, 8, AND 30: OBVIOUSNESS OVER SURYANARAYANA, PHILOMIN, KIM, DOUGALL, AND NIELSEN. Independent Claim 7 recites a “when” limitation, commensurate in scope with that of Claim 1. For the reasons applied to Claim 1, we find the Appeal 2020-000131 Application 15/029,983 12 prior art need not teach that conditional limitation. In view of the foregoing, we sustain the rejection of Claims 7, 8, and 30. CLAIM 31: OBVIOUSNESS OVER SURYANARAYANA, PHILOMIN, KIM, DOUGALL, NIELSEN, AND MCCARTHY. Appellant treats the independent claims together and relies on the independent claim arguments for the dependent claims; hence, the claims stand or fall together. C.W. Zumbiel Co., Inc. v. Kappos, 702 F.3d 1371, 1378 n.2 & 1381 n.4 (Fed. Cir. 2012); In re Dillon, 919 F.2d 688, 695 (Fed. Cir. 1990) (en banc); 37 C.F.R. § 41.37(c)(1)(vii) (2011). In view of the foregoing, we sustain the rejection of Claim 31. CONCLUSION In summary: Claim(s) Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 1–3, 11, 22, 26, 27, 28 103 Suryanarayana, Philomin, Kim, Dougall 1–3, 11, 22, 28 26, 27 4–6 103 Suryanarayana, Philomin, Kim, Dougall, Kurland 4–6 9, 10 103 Suryanarayana, Philomin, Kim, Dougall, Nielsen 9, 10 20, 25 103 Suryanarayana, Philomin, Kim, Dougall, AAPA 20, 25 21 103 Suryanarayana, Philomin, Kim, Dougall, Cheung 21 Appeal 2020-000131 Application 15/029,983 13 23 103 Suryanarayana, Philomin, Kim, Dougall, Sakata 23 24, 29 103 Suryanarayana, Philomin, Kim, Dougall, Xiong 24, 29 7, 8, 30 103 Suryanarayana, Philomin, Kim, Dougall, Nielsen 7, 8, 30 31 103 Suryanarayana, Philomin, Kim, Dougall, Nielsen, McCarthy 31 Overall Outcome 1–11, 20– 25, 28–31 26, 27 AFFIRMED IN PART