Toshiba Global Commerce Solutions Holdings Corporation

Patent Trials and Appeals Board

Jul 31, 2020

2020002367 (P.T.A.B. Jul. 31, 2020)

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.
14/675,053 03/31/2015 Kavita PRASAD C00000249.USU2 (072338) 4527
109971 7590 07/31/2020
Patterson & Sheridan, LLP- Toshiba TGCS
24 Greenway Plaza, Suite 1600
Houston, TX 77046
EXAMINER
KYEREME-TUAH, AKOSUA P
ART UNIT PAPER NUMBER
3623
NOTIFICATION DATE DELIVERY MODE
07/31/2020 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):
PAIR_eofficeaction@pattersonsheridan.com
psdocketing@pattersonsheridan.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte KAVITA PRASAD, MEGHA SAKRIKAR,
VIBHOR GOEL, and SHRUTI GROVER
Appeal 2020-002367
Application 14/675,053
Technology Center 3600
Before ERIC B. GRIMES, RICHARD M. LEBOVITZ, and
MICHAEL A. VALEK, Administrative Patent Judges.

LEBOVITZ, Administrative Patent Judge.
DECISION ON APPEAL
The Examiner rejected the claims under 35 U.S.C. § 103 as obvious.
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the Examiner’s
decision to reject the claims. We have jurisdiction under 35 U.S.C. § 6(b).
We REVERSE.

1 We use the word “Appellant” to refer to “applicant” as defined in 37
C.F.R. § 1.42. Appellant identifies the real party in interest as Toshiba
Global Commerce Solutions Holdings Corporation. Appeal Br. 2.
Appeal 2020-002367
Application 14/675,053

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STATEMENT OF THE CASE
The Examiner finally rejected the claims as follows:
1. Claims 1–3, 5, 7, 9–13, 15, 17, and 20 under 35 U.S.C. § 103 as
obvious in view of Argue et al. (US 2014/0214628 A1, published Jul. 31,
2014) (“Argue”), Davis et al. (US 2013/0223673 A1, published Aug. 29,
2013) (“Davis”), Vulpitta (US 2010/0078401 A1, published Apr. 1, 2010)
(“Vulpitta”), and Wurman et al. (US 2007/0293978 A1, published Dec. 20,
2007) (“Wurman”). Final Act. 3.
2. Claim 4 under 35 U.S.C. § 103 as obvious in view of Argue, Davis,
Vulpitta, Wurman, Hurewitz (US 2014/0365333 Al, published Dec. 11,
2014) (“Hurewitz”), and Suhl (US 20140282277 Al, published Sept. 18,
2014) (“Suhl”). Final Act. 29.
3. Claims 6, 14, 18, and 19 under 35 U.S.C. § 103 as obvious in view
of Argue, Davis, Vulpitta, Wurman, and Eilat et al. (US 2014/0043234 Al,
published Feb. 13, 2014) (“Eilat”). Final Act. 33.
4. Claim 8 under 35 U.S.C. § 103 as obvious in view of Argue, Davis,
Vulpitta, and Pasta et al. (WO 2009/050529 A2, published Apr. 23, 2009)
(“Pasta”). Final Act. 42.2

2 The omission of Wurman from the statement of the rejection appears to be
an inadvertent error because claim 8 depends on claim 1 (through a chain
including claim 5) and claim 1 was rejected on the basis of Wurman. Thus,
we consider Wurman to be part of the rejection. (Wurman was added to the
rejection in the Final Action in response to an amendment, which may help
explain the Examiner’s error.) This same reasoning applies to the next
rejection of claim 16 which depends on independent claim 15, also rejected
on the basis of Wurman.
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Application 14/675,053

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5. Claim 16 under 35 U.S.C. § 103 as obvious in view of Argue,
Davis, Vulpitta, and Kobres et al. (US 2015/0029339 A1, published Jan. 29,
2015) (“Kobres”). Final Act. 44.
There are three independent claims on appeal, claims 1, 9, and 15.
Claim 1 is directed to a method; claim 9 is directed to a “computer-readable
storage medium storing computer-readable program code” for carrying out
the same method as claim 1; and claim 15 is directed to a system with
modules for carrying out the same method recited in claim 1. Claim 1,
annotated with bracketed numbers for reference to the claim limitations, is
reproduced below:
1. A method, comprising:
[1] assigning a plurality of items to respective cells of a
plurality of cells that divide up an item presentation area in a
physical store based on different characteristics of the plurality
of items, wherein the plurality of items on different shelves are
virtually divided into different cells using horizontal grid lines
and items on the same shelf are virtually divided into different
groups using vertical grid lines;
[2] determining, by tracking a gaze of a person viewing
the item presentation area, a first cell of the plurality of cells
being viewed by the person using images captured by a sensor;
[3] identifying an item based on determining the person is
gazing at the first cell;
[4] identifying a predefined feedback gesture performed
by the person when viewing the first cell;
[5] assigning a feedback value corresponding to the
feedback gesture to the identified item for sale located in the first
cell;
[6] identifying changing inventory of items in the plurality
of cells; and
[7] readjusting a size of one or more cells of the plurality
of cells assigned to one or more corresponding items of the
plurality of items based on identifying the changing inventory.

Appeal 2020-002367
Application 14/675,053

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REJECTION BASED ON ARGUE, DAVIS, VULPITTA, AND WURMAN
Claim 1
In the first step of claim 1, items are assigned to cells in a physical
presentation area in a physical store, “wherein the plurality of items on
different shelves are virtually divided into different cells using horizontal
grid lines and items on the same shelf are virtually divided into different
groups using vertical grid lines.”
Figure 3 of the Specification shows an example of the virtual vertical
and horizontal gridlines which divide the shelf into cells. Figure 3 is
reproduced below in part:

Figure 3, reproduced above, shows a physical shelf divided by virtual
vertical and horizontal grid lines. As explained in the Specification, the
vertical grid lines are used to group items on the same shelf into different
cells. Spec. ¶ 30. The lines are “virtual”3 because they are not present on the

3 “being on or simulated on a computer or computer network.”
https://www.merriam-webster.com/dictionary/virtual (last accessed July 14,
2020).
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actual physical shelf, but are simulated and superimposed on the shelf. The
asterisk in the drawing shows the item on the shelf that a person is looking
at.
In step [2] of the claim, a cell being viewed by a person is determined
by tracking the gaze of the person using images captured by a sensor. The
item being looked at by the person is identified by determining the cell the
person is gazing at (step [3]). See asterisk in Fig. 3 reproduced above.
Steps [4] and [5] of the claim use a predefined gesture to provide
feedback about the identified item. The gesture is given a value. For
example, as explained in the Specification, a shopper can use a thumbs up to
mean the shopper likes the item and a thumbs down to show the shopper
does not. Spec. ¶¶ 26, 27.
A changing inventory of the items in the cells is identified in step [6]
and the size of the cells assigned to the items (as defined by the virtual grid
lines) are readjusted in step [7] based on the changing inventory.

Rejection
The Examiner finds that Argue describes tracking a shopper’s gaze
and using gestures to provide feedback about products as required by steps
[1]–[5] of claim 1. Final Act. 4–6. The Examiner states that Argue does not
“explicitly” describe assigning items to virtual cells as required by step [1]
of claim 1, but further cites Davis for this limitation. Final Act. 7.
The Examiner finds that the combination of Argue and Davis does not
describe identifying changing inventory and adjusting virtual cells as recited
in steps [6] and [7] of the claim. Final Act. 9. The Examiner finds that
Wurman describes this limitation. Id.
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Vulpitta is relied upon by the Examiner for its teaching of storing
different items on shelves in a retail store. Final Act. 9.

Discussion
Appellant argues that the cited prior art publications do not describe
or suggest virtually dividing items on shelves into cells formed from
horizontal and vertical grid lines as required by step [1] of claim 1. Appeal
Br. 7–8. Appellant also argues that that cited publications do not teach
readjusting the cells as recited in step [7] of claim 1. Id. at 9.
We agree with Appellant that the Examiner did not establish prima
facie obviousness of the claimed subject matter.
Argue describes a computer-implemented method which uses a
portable computer device that includes a camera to captures images of
products on a shelf in a retail store. Argue ¶¶ 2, 4, 11, 55, 60. Argue
discloses that a person “wishing to share a shopping experience, for
example, by creating a wishlist and/or recording a message regarding a
product, can utilize a portable computerized device such as a head-mounted
display (HMD).” Id. at ¶ 28. Argue further teaches that the device can
include a camera (“Device 600 additionally includes a camera device
capturing view 620 in front of the device”). Id. at ¶ 55. Argue also describes
projecting graphics on a view of the individual:
FIG. 2 illustrates an exemplary view of a shelf of products
in a retail store including an [sic] product of interest being shown
on a shelf and a prompt for the viewer to record a comment on
the product. View 220 can illustrate objects visible through an
HMD device or a video feed projected upon a portable
computerized device. Store shelves 210 are visible in the view,
as are products upon the shelves. Further view 220 can include
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graphics projected upon the view of the individual using the
device. A particular product can be indicated to or selected
according to methods disclosed herein and an indicating graphic
200 can be projected pointing to or highlighting the product upon
the shelves. Additionally, a message 230 can be projected upon
view 220 prompting an action from the individual, for example,
prompting an audio input to initiate recording a message related
to the product.
Id. at ¶ 42.
Argue does not disclose that the graphics projected on the view of the
individual using the device are grid lines as required by step [1] of claim 1.
In the Advisory Action entered after the Final Action, the Examiner
further finds that the claimed virtual grid lines are the physical shelves
shown in Figure 2 of Argue. Advisory Action (mailed July 17, 2019). We do
not agree. The claim requires that “the plurality of items on different shelves
are virtually divided” by vertical and horizontal grid lines. The physical
dividers on a shelf in a retail store are physical, not virtual. An image of a
physical shelf is a picture of the shelf, not a simulation of the shelf, and
therefore does not meet the “virtual” limitations of claim 1.
The Examiner also cites Davis as disclosing “assigning a plurality of
items to respective cells of a plurality of cells that divide up an item
presentation area in a physical store based on different characteristics of the
plurality of items.” Final Act.7 (emphasis omitted).
Davis describes using image data to identify items in a retail store.
Davis ¶ 67. However, nowhere in the disclosure of Davis cited by the
Examiner (Davis ¶¶ 67, 322, 362, 514) can we find a description of
assigning a plurality of items to cells virtually divided by vertical and
horizontal grid lines. Davis describes capturing images of items on a shelf to
determine if the item will be presented for checkout or if an item needs
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restocking. Davis ¶ 362. While this disclosure may be pertinent to step [6] of
“identifying changing inventory of items in the plurality of cells,” the
Examiner does not explain how this disclosure teaches or suggest assigning
the items to virtual cells as required by the claim.
The Examiner further cites Wurman as teaching steps [6] and [7] of
identifying a changing inventory and “readjusting a size of one or more cells
of the plurality of cells size assigned to one or more corresponding items of
the plurality of items based on identifying the changing inventory.” Final
Act. 9–10 (emphasis omitted). The Examiner specifically cites paragraphs 2,
77, and 78 of Wurman. Paragraph 2 of Wurman describes the challenges of
inventory systems. Paragraphs 77 and 78 of Wurman refer to physical
storage spaces and physical dividers (“inventory bins 320 may be formed by
a plurality of adjustable dividers 324 that may be moved to resize one or
more inventory bins 320”). The “adjusting” described in Wurman is,
therefore, of physical spaces, not cells formed from virtual vertical and
horizontal grid lines as required by claim 1.
Wurman also describes dividing a workspace with a grid into cells:
In particular embodiments, as discussed in greater detail below
with respect to FIG. 5, workspace 70 is associated with a grid
(shown in FIG. 5 as grid 12) that connects a plurality of points
within workspace 70. This grid may divide workspace 70 into a
number of portions referred to as cells 14. Cells 14 may square,
rectangular, polygonal, and/or of any other appropriate shape. In
particular embodiments, workspace 70 may be portioned so that
cells 14 have dimensions slightly larger than inventory holders
30.
Wurman ¶ 42. See Ans. 4 (citing Wurman’s teaching of irregularly sized
grid lines and cells).
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While the grid and cells described in Wurman appear to be formed
from virtual vertical and horizontal grid lines, the Examiner did not direct us
to disclosure where the grid lines were readjusted “based on identifying the
changing inventory” as required by the last step of claim 1. The Examiner
also did not explain how this disclosure would have made it obvious to
superimpose grid lines on “an item presentation area in a physical store,”
where the items are “on different shelves” as recited in step [1] of claim 1.
In sum, the Examiner did not establish the prima facie obviousness of
claim 1. The obviousness rejection of claim 1 based on Argue, Davis,
Vulpitta, and Wurman is, therefore, reversed. Independent claims 9 and 15
have substantially the same limitations and are reversed for the same
reasons. Dependent claims 2, 3, 5, 7, 10–13, 17, and 20 incorporate all the
limitations of the independent claims and are reversed, as well.
Rejections 2–5 of claims 4, 6, 8, 14, 16, and 18 are reversed because
the Examiner did not make findings that the additional prior art publications
make up for the deficiencies in the rejection based on Argue, Davis,
Vulpitta, and Wurman.

Appeal 2020-002367
Application 14/675,053

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CONCLUSION
In summary:
Claims
Rejected
35 U.S.C.
§
Reference(s)/Basis Affirmed Reversed
1–3, 5, 7, 9–
13, 15, 17,
20
103 Argue, Davis,
Vulpitta, Wurman
1–3, 5, 7, 9–
13, 15, 17,
20
4 103 Argue, Davis,
Vulpitta, Wurman,
Hurewitz, Suhl
4
6, 14, 18, 19 103 Argue, Davis,
Vulpitta, Wurman,
Eilat
6, 14, 18, 19
8 103 Argue, Davis,
Vulpitta, Pasta
8
16 103 Argue, Davis,
Vulpitta, Kobres
16
Overall
Outcome
1–20

REVERSED