Ex Parte Ferren et al

Patent Trial and Appeal BoardDec 20, 2018

13992699 (P.T.A.B. Dec. 20, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE FIRST NAMED INVENTOR 13/992,699 06/07/2013 45209 7590 12/25/2018 WOMBLE BOND DICKINSON (US) LLP/Mission Attn: IP Docketing P.O. Box 7037 Atlanta, GA 30357-0037 UNITED ST A TES OF AMERICA Bran Ferren 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 ATTORNEY DOCKET NO. CONFIRMATION NO. 42P36619 1038 EXAMINER SILVERMAN, SETH ADAM ART UNIT PAPER NUMBER 2145 NOTIFICATION DATE DELIVERY MODE 12/25/2018 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): Database_ Group@bstz.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte BRAN FERREN, DAVID BEAL, W. DANIEL HILLIS, DIMITRI NEGROPONTE, and JAMES SARRETT 1 Appeal2018-006072 Application 13/992,699 Technology Center 2100 Before DENISE M. POTHIER, JOHNNY A. KUMAR, and STEVEN M. AMUNDSON, Administrative Patent Judges. KUMAR, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF CASE Introduction Appellants appeal under 35 U.S.C. Â§ 134(a) from the final rejection of claims 13-21, 41, and 43. We have jurisdiction under 35 U.S.C. Â§ 6(b). We affirm. 1 According to Appellants the Real Party in Interest is Intel Corporation. Br. 3. Appeal2018-006072 Application 13/992,699 Exemplary Claim Exemplary claim 13 under appeal reads as follows: 13. A mobile device comprising: a touch sensor for the detection of gestures, the touch sensor including a plurality of sensor elements; and a processor, the processor to interpret the gestures detected by the touch sensor; wherein each of one or more applications or functions of applications is characterized by one or more actions that are defined as dominant actions for the application or function, and wherein each of the one or more defined dominant actions for an application or function is invoked by a particular gesture in the respective application or function; wherein the processor is to: identify the one or more actions that are defined as dominant actions for a currently active application or a function of the currently active application; choose a gesture recognition algorithm from a plurality of gesture recognition algorithms for the purpose of interpreting gestures in the currently active application or function, wherein the choice of the gesture recognition algorithm for the currently active application or function is based on which gesture recognition algorithm of the plurality of gesture recognition algorithms is the most effective algorithm of the plurality of gesture recognition algorithms for recognizing the one or more gestures that invoke the one or more dominant actions defined for the active application or function; determine a first intended action of a user based on an interpretation of a first gesture using the chosen gesture recognition algorithm; and implement the first intended action in the context of the active application or function. 2 Appeal2018-006072 Application 13/992,699 Rejections2 Claims 13-15 and 41 are rejected underpre-AIA 35 U.S.C. Â§ I02(e) as being anticipated by Raffa et al. (US 2012/0016641 Al; published Jan. 19, 2012). Claims 16 and 17 are rejected under pre-AIA 35 U.S.C. Â§ I03(a) as being unpatentable over Raffa in view of Bernstein et al. (US 2011/0007021 Al; published Jan. 13, 2011). Claims 18-21 and 43 are rejected underpre-AIA 35 U.S.C. Â§ I03(a) as being unpatentable over Raffa in view of Westerman et al. (US 2008/0168403 Al; published July 10, 2008). ANALYSIS Based on Appellants' arguments in the Brief, the principal and dispositive issue of whether the Examiner erred in rejecting exemplary claim 13 turns on whether Raffa discloses "one or more actions that are defined as dominant actions for the application or function, and wherein each of the one or more defined dominant actions for an application or function is invoked by a particular gesture in the respective application or function" (hereinafter "the disputed limitations"). Br. 14--22. Independent claim 18 recites similar subject matter. 3 We adopt the findings of facts made by the Examiner in the Final Action and Examiner's Answer as our own. We concur with the decision 2 The rejections of claims 13 and 18 under 35 U.S.C. Â§ 112, first and second paragraphs, have been withdrawn by the Examiner. Ans. 11-14. 3 Appellants did not provide separate, substantive arguments with respect to the patentability of claims 14--21, 41, and 43. 3 Appeal2018-006072 Application 13/992,699 reached by the Examiner in the Examiner's Answer. We highlight the following for emphasis. Appellants contend Raffa does not disclose the disputed limitations. Br. 14--22. In particular, Appellants contend there is "no teaching in Raffa regarding the dominant actions for an application or gesture." Br. 22. Initially, we note Appellants fail to cite to an explicit definition of "dominant actions" in the Specification that is inconsistent with or otherwise would preclude the Examiner's construction of "dominant actions." "In the patentability context, claims are to be given their broadest reasonable interpretations ... [and] limitations are not to be read into the claims from the specification." In re Van Geuns, 988 F.2d 1181, 1184 (Fed. Cir. 1993) (citations omitted). Any special meaning assigned to a term "must be sufficiently clear in the specification that any departure from common usage would be so understood by a person of experience in the field of the invention." Multiform Desiccants, Inc. v. Medzam, Ltd., 133 F.3d 1473, 1477 (Fed. Cir. 1998); see also Helmsderfer v. Bobrick Washroom Equip., Inc., 527 F.3d 1379, 1381 (Fed. Cir. 2008) ("A patentee may act as its own lexicographer and assign to a term a unique definition that is different from its ordinary and customary meaning; however, a patentee must clearly express that intent in the written description."). Absent an express "intent to impart a novel meaning to the claim terms, the words are presumed to take on the ordinary and customary meanings attributed to them by those of ordinary skill in the art." Brookhill-Wilk 1, LLC. v. Intuitive Surgical, Inc., 334 F.3d 1294, 1298 (Fed. Cir. 2003) ( citation omitted). 4 Appeal2018-006072 Application 13/992,699 The Examiner has identified the relevant portions of Raffa and has provided sufficient explanation with corresponding citations to various parts of the reference for disclosing the disputed limitations. Final Act. 9-- 13. In particular, the Examiner finds, and we agree: Raffa uses context to define the most frequent actions for each application), and wherein each of the one or more defined dominant actions for an application or function ( call [Raffa, 0059]; Examiner's Note: the phone application) is invoked by a particular gesture in the respective application ( a pose "hand palm up" for rejecting the incoming call and a movement towards the user ear for accepting the call [Raffa, 0059]) or function ( context may also be used to constrain the choice to a subset of the possible gestures and algorithms by indicating either allowed or disallowed gestures. For example, an application may define two different gestures recognized by two different algorithms for rejecting or accepting a call: a pose "hand palm up" for rejecting the incoming call and a movement towards the user ear for accepting the call [Raffa, 0059])[.] Final Act. 10-11. (Emphasis omitted). In other words, the recited "application" may correspond to Raffa's phone application, the recited "one or more actions that are defined as dominant actions for the application" may correspond to rejecting or accepting a call in Raffa, and the recited "each of the one or more defined dominant actions for an application ... is invoked by a particular gesture in the respective application" may correspond to gesturing toward an ear to accept a call. Final Act. 10-11 (citing Raffa ,r,r 31, 59). The Examiner, giving the claim its broadest reasonable interpretation consistent with the Specification, has properly found that Raffa discloses the disputed limitations, as explained above. 5 Appeal2018-006072 Application 13/992,699 Appellants provided additional arguments that Raffa does not disclose a "most effective algorithm," as required by claim 13. Br. 9--12 ( emphasis omitted). We have considered these arguments and find them unpersuasive under the broadest reasonable construction of this phrase consistent with the Specification. In addition, we note the Examiner has rebutted these arguments in the Answer by a preponderance of the evidence (Ans. 16-17), finding Raffa discloses "a system that chooses a gesture recognition algorithm from plural algorithms based on a user's gestures in context to the present application or function." We agree with the Examiner's findings and underlying reasoning and adopt them as our own. We note that no Reply Brief is of record to rebut the Examiner's responses to Appellants' arguments. From the discussion above, it follows that Appellants have not shown error in the Examiner's rejection of independent claim 13. Thus, we sustain the rejection of claims 13-15 and 41 under 35 U.S.C. Â§ 102(e), and the Examiner'sÂ§ 103(a) rejections of claims 16-21 and 43. DECISION We affirm the Examiner's Â§ 102( e) rejection of claims 13-15 and 41 and the Examiner'sÂ§ 103(a) rejections of claims 16-21 and 43. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. Â§ 1.136(a)(l)(iv). AFFIRMED 6