Decided February 10, 2009
(Appeal 2009-0786; Appl. No. 09/727,290; Tech. Center 2600)
This is another BPAI decision involving the interpretation of "in response to." (See this post for a discussion of another BPAI decision also involving "in response to.")
The claim in this case read:
a) sensing a person within a predetermined distance of the kiosk by a proximity sensor of the kiosk;
b) displaying first information in response to said sensing step by a display of the kiosk to attract attention of the person to the first information of the display...;
The prior art taught a kiosk with a proximity sensor. When a person was detected, the prior art then determined whether or not the screen had been touched. If the screen was touched, the kiosk interacted with the user based on the particular area that was touched. If the screen was not touched, the kiosk provided an attention getting display.
Thus, the prior art disclosed "displaying first information" (the attention getting display) in response to two conditions being met: a person was sensed; and the screen was not touched. The claim included a single condition – person was sensed – for the display step.
Since the claim used the open-ended transitional phrase "comprising," the Board found that
[T]he claim does not preclude intermediary steps occurring between sensing a person and displaying the first information...Thus even though Cragun shows the step of determining whether the touch screen has been touched (step 112) occurs immediately prior to displaying the first information at 114, Cragun still discloses displaying "first information" (step 114) in response to sensing a person within a predetermined distance of kiosk 10 (FF3).I disagree with the analysis here. I can't argue with the black letter law about the meaning of "comprising," and my problem is not with the presence of the intermediate step (testing for a touch to the screen) per se. My problem is that the attention-getting display in Cragun is conditional on sensing and touching, where I read the claim as having a single condition (sensing).
(Decision, pp. 5-6.)
Here's another way to think about the issue: should the default interpretation of "action X responsive to condition Y" be
- if condition Y is met, action X always occurs; or
- if condition Y is met, action X may occur, but some other conditions may be required also.