Corville O. Allen et al.

Patent Trials and Appeals Board

Jun 2, 2020

15255008 - (D) (P.T.A.B. Jun. 2, 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.
15/255,008 09/01/2016 Corville O. ALLEN AUS9-2016-0348-US1 9051
141546 7590 06/02/2020
CONLEY ROSE, P.C. / IBM (AUS)
5601 Granite Park
Suite 500
Plano, TX 75024
EXAMINER
BAKER, CHARLOTTE M
ART UNIT PAPER NUMBER
2664
NOTIFICATION DATE DELIVERY MODE
06/02/2020 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):
dallaspatents@dfw.conleyrose.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________________

Ex parte CORVILLE O. ALLEN, ALBERT A. CHUNG, and
RAVI K. MUTHUKRISHNAN
____________________

Appeal 2019-000661
Application 15/255,0081
Technology Center 2600

Before BRADLEY W. BAUMEISTER, JON M. JURGOVAN, and
MICHAEL M. BARRY, Administrative Patent Judges.

JURGOVAN, Administrative Patent Judge.

DECISION ON APPEAL

Appellant seeks review under 35 U.S.C. § 134(a) from a final
rejection of claims 1–5, 7–9, 11, 12, and 15–20, constituting all of the
rejected claims pending in the application. We have jurisdiction under
35 U.S.C. § 6(b).
We AFFIRM IN PART.2

1 We use the word “Appellant” to refer to “applicant” as defined in
37 C.F.R. § 1.42. According to Appellant, the real party in interest is
International Business Machines Corporation. Appeal Br. 4.
2 Our Decision refers to the Specification (“Spec.”) filed September 1, 2016,
the Final Office Action (“Final Act.”) mailed April 23, 2018, the Appeal
Brief filed July 26, 2018 (“Appeal Br.”), the Examiner’s Answer (“Ans.”)
mailed October 25, 2018, and the Reply Brief (“Reply Br.”) filed
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CLAIMED INVENTION
The claims are directed to analyzing a visual image asset to determine
a human gesture and the context for that gesture. Spec. Abstract, ¶¶ 17, 18.
For example, a person’s holding up two fingers could be interpreted as the
number two, the letter V, or a peace sign, depending on the context.
Id. ¶ 19. The true meaning of a gesture is determined by using context to
filter possible meanings. Id. ¶¶ 18, 34. A computing device executes an
operation whose function depends on the determined contextual gesture. Id.
¶ 43.
Claims 1, 8, and 16 are independent, and claims 2–5, 7, 9, 11, 12, 15,
and 17–20 are dependent. Claim 1, reproduced below, is representative of
the claimed invention:
1. A computer program product for determination of a
contextual meaning of human gestures, the computer program
product comprising a computer readable storage medium having
program instructions embodied therewith, the program
instructions executable by a processor to cause the processor to:
receive a visual image asset comprising a plurality of
pixels that collectively depict a content of the visual image asset;
analyze the plurality of pixels according to a first digital
image analysis protocol to determine at least one indicia of a
context associated with the content of the visual image asset;
analyze the plurality of pixels according to a second digital
image analysis protocol to determine a gesture indicated by the
content of the visual image asset;
perform a semantic mapping to determine the contextual
meaning of the gesture based on the at least one indicia of the
context and the determined gesture; and
execute an audiovisual output_operation responsive to
determining the contextual meaning of the gesture, wherein at
least one function of the operation is dependent upon the

October 31, 2018.
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contextual meaning of the gesture and modified from a prior state
based on the contextual meaning of the gesture.
Appeal Br. 24 (Claims Appendix).

REJECTIONS3
(1) Claims 1–4 and 16–20 stand rejected under 35 U.S.C.
§ 102(a)(1) based on Reville (US 8,457,353 B2, June 4, 2013).
Final Act. 6–9.
(2) Claim 5 stands rejected under 35 U.S.C. § 103 based on Reville
and Immonen (US 8,896,529 B2, Nov. 25, 2014). Final Act. 10.
(3) Claim 7 stands rejected under 35 U.S.C. § 103 based on Reville
and Hessler (US 2017/0006009 A1, Jan. 5, 2017). Final Act. 10.
(4) Claims 8, 9, 11, and 12 stand rejected under 35 U.S.C. § 103
based on Reville and Liebermann (US 8,523,572 B2, Sept. 3, 2013).
Final Act. 11–13.
(5) Claim 15 stands rejected under 35 U.S.C. § 103 based on
Reville, Liebermann, and Hessler. Final Act. 13.

ANALYSIS
§ 102 Rejections
“Anticipation requires the presence in a single prior art disclosure of
all elements of a claimed invention arranged as in the claim.” Connell v.
Sears, Roebuck & Co., 722 F.2d 1542, 1548 (Fed. Cir. 1983); see also

3 In the Answer, the Examiner indicates claims 13 and 14 are objected to as
dependent from a rejected base claim, but allowable if rewritten in
independent form. Ans. 19–20. Thus, the rejections of claims 13 and 14 are
moot.
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In re Gleave, 560 F.3d 1331, 1334 (Fed. Cir. 2009); In re Buszard, 504 F.3d
1364, 1366 (Fed. Cir. 2007); In re Paulsen, 30 F.3d 1475, 1478–79
(Fed. Cir. 1994). Anticipation is a factual issue. In re Schreiber, 128 F.3d
1473, 1477 (Fed. Cir. 1997).
Claim 1
Claim 1 recites the following limitations:
receive a visual image asset comprising a plurality of
pixels that collectively depict a content of the visual image asset;
analyze the plurality of pixels according to a first digital
image analysis protocol to determine at least one indicia of a
context associated with the content of the visual image asset;
analyze the plurality of pixels according to a second digital
image analysis protocol to determine a gesture indicated by the
content of the visual image asset;
Appeal Br. 24 (Claims Appendix).
The Examiner finds that Reville’s Figure 4, Step 516, discloses
claim 1’s context analysis feature. Final Act. 6–7. The corresponding
description states the following:
At step 516 a user interface context is determined and
applied. The UI context may be an environmental context
referring to the different environments presented by computing
environment 12. For example, there may be a different context
among different environments of a single application running on
computing device 12.
Reville 14:26–31. Reville provides the example that, in a video game
application, a first context may be when a user operates a vehicle, and a
second context may be when the user is on foot. Reville 14:31–42.
Gestures are interpreted differently depending on whether the vehicle
context or foot context applies. Id.
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Appellant argues that any context determined by Reville “is a context
of the user-interface viewed by a user, not a context of the gesture depicted
in the captured image of the user.” Appeal Br. 11 (emphasis omitted). We
agree with Appellant’s argument because the cited parts of Reville do not
disclose context determination from a visual image asset, as claimed.
Consequently, on this record, we are constrained not to sustain the
Examiner’s rejection of claim 1.
Claims 2–4
Claims 2–4 depend from claim 1. We do not sustain the anticipation
rejection of claims 2–4 for the same reason stated with respect to claim 1.
Claim 16
Claim 16 recites the following:
16. A system, comprising a processor configured to:
receive an indication of an occurrence of a human gesture;
execute one or more instructions to perform an analysis of
the indication of the occurrence of the human gesture to
determine contextual criteria having a relationship to the
occurrence of the human gesture;
determine a meaning of the human gesture based at least
in part on the contextual criteria and a plurality of possible
intended meanings for the human gesture; and
execute an audiovisual output_instruction responsive to
determining the meaning of the human gesture, wherein at least
a portion of the instruction is dependent upon the meaning of the
human gesture and is modified from a prior state based on the
contextual meaning of the gesture.
Appeal Br. 28–29 (Claims Appendix).
Appellant argues for patentability of claim 16 on the same basis as
claim 1, contending that Reville fails to disclose determining context from a
visual image asset, or determining gesture and context from the same visual
image asset. Appeal Br. 9–16. Claim 16, however, does not recite any
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visual image asset. Ans. 11. Arguments must be commensurate in scope
with the actual claim language. In re Self, 671 F.2d 1344, 1348 (CCPA
1982). Thus, we find Appellant’s arguments unpersuasive to show
Examiner error for claim 16.
Claim 17
Claim 17 depends from claim 16. Claim 17 recites as follows:
17. The system of claim 16, wherein the indication of the
occurrence of the human gesture is a visual image asset, and
wherein the contextual criteria is determined based on
surroundings of the human gesture in the visual image asset.
Appellant argues Reville fails to disclose the features of claim 17.
Appeal Br. 16–17. We agree with Appellant’s argument that Reville does
not disclose “wherein the contextual criteria is determined based on
surroundings of the human gesture in the visual image asset.” Id. at 17. The
cited parts of Reville do not disclose determining a gesture’s context from a
visual image asset. Accordingly, we do not sustain the rejection of claim 17.
Claim 18
Claim 18 depends from claim 16. Claim 18 recites as follows:
18. The system of claim 16, wherein the plurality of possible
intended meanings for the human gesture are filtered according
to the contextual criteria to determine the meaning of the human
gesture.
Appeal Br. 29 (Claims Appendix). Appellant argues Reville fails to disclose
the features of claim 18. Appeal Br. 17–19. We agree with Appellant.
Reville states:
A gesture recognition engine 190 may compare the data captured
by the cameras 36, 38 and device 20 in the form of the skeletal
model and movements associated with it to the gesture filters in
the gesture library 192 to identify when a user (as represented by
the skeletal model) has performed one or more gestures.
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Reville 7:66–8:11, cited in Ans. 6. Thus, the cited portion of Reville uses
gesture filters to identify when a user has performed a gesture. This is not
the same as filtering possible intended meanings for a human gesture to
determine the meaning of the human gesture, as claimed. Accordingly, we
do not sustain the rejection of claim 18.
Claims 19 and 20
Claims 19 and 20 depend from claim 16. Appellant presents no
separate arguments for these claims. Accordingly, these claims fall for the
reasons stated for claim 16.
§ 103 Rejections
A patent claim is unpatentable under 35 U.S.C. § 103 if the
differences between the claimed subject matter and the prior art are such that
the subject matter, as a whole, would have been obvious at the time the
invention was made to a person having ordinary skill in the art to which said
subject matter pertains. KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 406
(2007). The question of obviousness is resolved on the basis of underlying
factual determinations including: (1) the scope and content of the prior art;
(2) any differences between the claimed subject matter and the prior art;
(3) the level of ordinary skill in the art; and (4) where present, objective
evidence of nonobviousness. Graham v. John Deere Co., 383 U.S. 1, 17–18
(1966).
Claims 5 and 7
Claims 5 and 7 depend from claim 1 and include all of its limitations.
The Examiner relies on Immonen to teach or suggest the feature of claim 5,
and on Hessler to teach or suggest the feature of claim 7. Final Act. 10. As
the Examiner has not shown that Immonen and Hessler overcomes the
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deficiencies of Reville noted with respect to the rejection of claim 1, we do
not sustain the rejections of claims 5 and 7.
Claim 8
Claim 8 recites the following:
8. A computer-implemented method, comprising:
receiving a digital media asset comprising a plurality of
pixels;
performing a first image analysis of the digital media asset
at a pixel-based level to determine a gesture embodied within the
digital media asset according to a first relationship among the
plurality of pixels of the digital media asset;
performing a second image analysis of the digital media
asset at the pixel-based level to determine a context of the gesture
according to a second relationship among the plurality of pixels
of the digital media asset; and
determining a cultural meaning of the gesture based on the
determined gesture and the context of the gesture.
Appeal Br. 26 (Claims Appendix). The Examiner rejects claim 8 over the
combination of Reville and Liebermann. Final Act. 11. Appellant argues
claim 8 on the same basis as claim 1, contending that the combination of
Reville and Liebermann fails to teach or suggest determining context from
the digital media asset, as claimed. Appeal Br. 19–20. The Examiner has
not shown that Liebermann discloses the deficiencies of Reville noted
regarding claim 1. Accordingly, we do not sustain the rejection of claim 8.
Claims 9, 11, 12, and 15
Claims 9, 11, 12, and 15 depend, directly or indirectly, from claim 8
and thus include all of its limitations. By virtue of their dependency from
claim 8, we do not sustain the rejections of claims 9, 11, 12, and 15.

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CONCLUSION
The Examiner’s rejections of claims 16, 19, and 20 under 35 U.S.C.
§ 103 are affirmed.
The rejections of claims 1–5, 7–9, 11, 12, 15, 17, and 18 under
35 U.S.C. § 103 are reversed.

Claims
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1–4, 16–20 102(a)(1) Reville 16, 19, 20 1–4, 17,
18
5 103 Reville, Immonen 5
7 103 Reville, Hessler 7
8, 9, 11, 12 103 Reville, Liebermann 8, 9, 11,
12
15 103 Reville,
Liebermann,
Hessler
15
Overall
Outcome
16, 19, 20 1–5, 7–9,
11, 12, 15,
17, 18

No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv).

AFFIRMED IN PART