Appeal No. 2001-2612 Page 5
Application No. 09/479,741
the faces show, for each “one and only one emotion,” “different facial expressions . . .
which distinguish different levels of intensities” of the respective states of the emotion,
and therefore the rejection cannot be sustained.
With particular reference to page 4 of the Answer and page 6 of Paper No. 5 (the
final rejection), the examiner has taken the position that the faces shown in Frank’s
Figures 3A-3H can be grouped into particular emotions. As an example, the examiner
expresses the view that three levels of intensity of the emotion “happy” are shown in
Figures 3A (labeled “happy”in column 5), Figure 3B (labeled “content”), and Figure 3H
(labeled “falsely happy”). Thus, as we understand the rejection, Figures 3A, 3B, and 3H
constitute the “one and only one emotion” recited in claims 1 and 3, and the
expressions pictured in these three Figures correspond to the “facial expressions . . .
which distinguish different levels of intensity” of the emotion of happiness, considering
Figure 3B to be a first level of happiness, Figure 3H a second level, and Figure 3A a
third level. We do not agree with this interpretation of the teachings of the reference.
Frank characterizes each of the eight face elements shown in Figures 3A-3H as
being different “emotions” (column 5, lines 37-49, emphasis added). Thus, in
accordance with the Frank invention, “content” (Figure 3B), “falsely happy” (Figure 3H),
and “happy” (Figure 3A) are not different intensities of the same emotion, but are
entirely different emotions. This being the case, while we would admit that anticipation
merely requires that the subject matter of the claims “read on” elements in the
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