Ex Parte Henry et al

Patent Trials and Appeals Board

Mar 29, 2019

14565137 - (D) (P.T.A.B. Mar. 29, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
14/565,137 12/09/2014
26158 7590 04/02/2019
WOMBLE BOND DICKINSON (US) LLP
ATTN: IP DOCKETING
P.O. BOX 7037
ATLANTA, GA 30357-0037
FIRST NAMED INVENTOR
Raymond Charles Henry JR.
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.
R60999 l 1060US .1
(0772.8)
1598
EXAMINER
YAARY,ERIC
ART UNIT PAPER NUMBER
1747
NOTIFICATION DATE DELIVERY MODE
04/02/2019 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):
IPDocketing@wbd-us.com
BostonPatents@wbd-us.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte RAYMOND CHARLES HENRY JR.,
WILSON CHRISTOPHER LAMB,
MARK RANDALL STONE, GLEN JOSEPH KIMSEY,
and FREDERIC PHILIPPE AMPOLINI
Appeal 2018-001134
Application 14/565,137 1
Technology Center 1700
Before ADRIENE LEPIANE HANLON, MICHAEL P. COLAIANNI, and
AVEL YN M. ROSS, Administrative Patent Judges.
HANLON, Administrative Patent Judge.
DECISION ON APPEAL
A. STATEMENT OF THE CASE
The Appellants filed an appeal under 35 U.S.C. § 134(a) from an Examiner's
decision finally rejecting claims 1, 2, 4, 5, 7-12, 14, 15, and 17-20. We have
jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.
1 The real party in interest is said to be RAI Strategic Holdings, Inc. Appeal Brief
dated July 5, 2017 ("App. Br."), at 1. The Applicant is said to be R.J. Reynolds
Tobacco Company.
Appeal 2018-001134
Application 14/565,137
The Appellants' invention relates to aerosol delivery devices, such as
electronic cigarettes. Spec. 1, 11. 1-3; id. at 2, 11. 5---6. The aerosol delivery device
is said to include a housing, a microprocessor, and a motion sensor within the
housing. Id. at 2, 11. 7-8, 10-11. In some examples, the motion sensor is said to
include a tilt sensor, a microelectromechanical systems-based (MEMS-based)
accelerometer, a MEMS-based gyroscope, or a combination of one or more
thereof. Id. at 2, 11. 8-10. The Appellants disclose that the motion sensor is
configured to detect a defined motion of the aerosol delivery device caused by user
interaction with the housing to perform a gesture, such as to trace a character with
the housing. Id. at 2, 11. 10-13. The Appellants disclose that the motion sensor
may be configured to convert the defined motion to an electrical signal. Id. at 2, 11.
13-14.
The microprocessor is said to be configured to receive the electrical signal,
recognize the gesture and an operation associated with the gesture based on the
electrical signal, and control at least one functional element of the aerosol delivery
device to perform the operation. Id. at 2, 11. 15-18. In some examples, the
Appellants disclose that the electrical signal conveys data about the defined motion
of the aerosol delivery device. Id. at 2, 11. 18-19. In those examples, the
Appellants disclose that the microprocessor may be configured to recognize a
pattern in the data, wherein the pattern is associated with the gesture. Id. at 2, 11.
19-21.
Representative claim 1 is reproduced below from the Claims Appendix to
the Appeal Brief. The limitation at issue is italicized.
1. An aerosol delivery device comprising:
a housing;
a microprocessor; and
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Application 14/565,137
a motion sensor within the housing and configured to detect a
defined motion of the aerosol delivery device caused by user
interaction to trace a character with the housing and thereby perform a
gesture, the motion sensor being configured to convert the defined
motion to an electrical signal that conveys data about the defined
motion of the aerosol delivery device, the data including samples of
velocity of the aerosol delivery device, or data from which the
samples of velocity are determinable,
wherein the microprocessor is configured to receive the
electrical signal, recognize the character and thereby the gesture, and
an operation associated with the gesture, based on the electrical signal,
and control at least one functional element of the aerosol delivery
device to perform the operation, the microprocessor being configured
to recognize the character including the microprocessor being
configured to recognize a pattern in the samples of velocity, the
pattern being associated with the character and thereby the gesture.
App. Br. 12.
The Examiner maintains the following rejections on appeal:
(1) claims 1, 4, 11, and 14 under 35 U.S.C. § I03(a) as unpatentable over
Cohen et al. 2 in view of Quintana 3 and Sachs et al.; 4
(2) claims 2 and 12 under 35 U.S.C. § I03(a) as unpatentable over Cohen
in view of Quintana and Sachs, and further in view of Tu; 5
(3) claims 5 and 15 under 35 U.S.C. § I03(a) as unpatentable over Cohen
in view of Quintana and Sachs, and further in view of Hong et al.; 6
(4) claims 7, 9, 17, and 19 under 35 U.S.C. § I03(a) as unpatentable over
Cohen in view of Quintana and Sachs, and further in view of Monsees et al.;7
2 US 2011/0036346 Al, published February 17, 2011 ("Cohen").
3 US 2016/0053988 Al, published February 25, 2016 ("Quintana").
4 US 2009/0265671 Al, published October 22, 2009 ("Sachs").
5 US 2015/0173419 Al, published June 25, 2015 ("Tu").
6 US 2010/0117959 Al, published May 13, 2010 ("Hong").
7 US 2013/0042865 Al, published February 21, 2013 ("Monsees").
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Application 14/565,137
(5) claims 8 and 18 under 35 U.S.C. § I03(a) as unpatentable over Cohen
in view of Quintana and Sachs, and further in view of LaMothe; 8 and
(6) claims 10 and 20 under 35 U.S.C. § I03(a) as unpatentable over
Cohen in view of Quintana and Sachs, and further in view of Memari et al. 9
B. DISCUSSION
The Examiner finds Cohen discloses an aerosol delivery device (i.e., a
personal inhalation device) comprising a housing, a logic circuit, and an
accelerometer ( corresponding to the claimed motion sensor). Final Act. 2. 10 The
Examiner finds:
[T]he motion sensor is configured to detect a defined motion of the
aerosol delivery device caused by user interaction with the housing to
perform a gesture, the motion sensor being configured to convert the
defined motion to an electrical signal, wherein the logic circuit is
configured to receive the electrical signal, recognize the gesture and
an operation associated with the gesture based on the electrical signal,
and control at least one functional element of the aerosol delivery
device to perform the operation.
Final Act. 2.
The Examiner finds Cohen does not teach that the logic circuit comprises a
microprocessor. Final Act. 2. The Examiner, however, finds Quintana discloses
an aerosol delivery device, wherein an integrated circuit includes a microprocessor.
Final Act. 2. "As microprocessors are known in the art for controlling the
operation of aerosol delivery devices," the Examiner concludes that it would have
been obvious to one of ordinary skill in the art "to include a microprocessor with
the logic circuit of ... Cohen to achieve predictable results." Final Act. 2.
8 US 2014/0107815 Al, published April 17, 2014 ("LaMothe").
9 US 2015/0245654 Al, published September 3, 2015 ("Memari").
1° Final Office Action dated January 6, 2017.
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Application 14/565,137
The Examiner also finds that Cohen, as modified by Quintana, does not
disclose tracing a character with the housing as claimed. Final Act. 3.
Nonetheless, the Examiner finds:
Sachs teaches mobile devices with motion gesture recognition
wherein a motion sensor is configured to detect a defined motion
caused by user interaction to trace a character with the housing to, and
thereby perform a gesture, the motion sensor conveys data about the
defined motion, the data including samples of velocity, wherein the
microprocessor is configured to receive the data, recognize the
character and thereby the gesture, including the microprocessor being
configured to recognize a pattern in the samples of velocity, the
pattern being associated with the character and thereby the gesture.
Final Act. 3 (emphasis added) (citing Sachs ,r,r 36, 37, 39, 42, 49, 51, 59, 110;
Sachs Fig. 9).
The Examiner concludes that it would have been obvious to one of ordinary
skill in the art "to include user interaction to trace a character with a housing in
modified Cohen," based on the teachings in Sachs, as an alternative gesture for
performing an operation associated with a gesture as disclosed in Cohen. Final
Act. 3.
The Appellants argue that the portions of Sachs relied on by the Examiner
do not teach or suggest that its processor is configured to recognize a pattern in
samples of velocity as recited in claim 1. App. Br. 5-7.
In response, the Examiner relies on paragraph 90 of Sachs to establish that
Sachs teaches that the disclosed microprocessor is configured as recited in claim 1.
Ans. 5, 9; 11 see also Sachs ,r 90 (disclosing that "[i]n step 206 [of Figure 9], the
received motion data (and any other relevant data) is analyzed and one or more
motion gestures are recognized in the motion data" ( emphasis added)).
11 Examiner's Answer dated September 11, 2017.
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Application 14/565,137
In the Reply Brief, the Appellants do not address the disclosure in paragraph
90 of Sachs. Rather, the Appellants argue that "the Examiner has factually erred in
finding that Sachs discloses a microprocessor configured to recognize a pattern in
the samples of velocity." Reply Br. 4. 12 More specifically, the Appellants argue:
Sachs ... discloses that its MPU [ motion processing unit] includes
rotational motion sensors (gyroscopes) to measure angular velocity,
and linear motion sensors (accelerometers) to measure linear
acceleration. . . . Velocity and linear acceleration are clearly not the
same. Velocity and angular velocity are also not the same. Velocity
is "the rate of change of position along a straight line with respect to
time." Merriam-Webster Online, Definition of Velocity ( visited
May 30, 2017) . Angular velocity is "the rate of
rotation around an axis usually expressed in radians or revolutions per
second or per minute." Merriam-Webster Online, Definition of
Angular Velocity (visited May 30, 2017) https://www.merriam-
webster.com/dictionary/angular%20velocity>.
Reply Br. 2-3; see also App. Br. 5---6.
The Appellants' argument is not persuasive of reversible error. The
Examiner finds that the "Appellant has not defined velocity to be limited to a linear
direction." Ans. 9; see Spec. 16, 11. 14--15 (disclosing that "velocity may decrease
as a change in direction is approached in all shapes (e.g., there is a comer)"
( emphasis added)). Indeed, the Appellants do not provide a definition of
"velocity" in the Specification. Moreover, the Examiner finds that "the same
motion sensor cited by Appellant for determining velocity, an accelerometer ... ,
is also used by both Cohen and Sachs." Ans. 9 (citing Spec. 16, 11. 4--11).
The Appellants also disclose that exemplary motion sensors include
gyroscopes. See Spec. 2, 11. 8-1 O; Sachs ,r 52. In fact, claim 2, which depends
12 Reply Brief dated November 13, 2017.
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Application 14/565,137
from claim 1, recites that the motion sensor includes a MEMS-based accelerometer
and a MEMS-based gyroscope. App. Br. 12.
On this record, the Appellants have failed to establish that the term
"velocity" recited in claim 1 excludes at least the gyroscope disclosed in Sachs.
See Ans. 9 (determining that "[a]ngular velocity as disclosed by Sachs is
interpreted to fall within Appellant's claimed velocity").
The Appellants also argue:
In the final Office Action, the Examiner's only basis for
modification of Cohen in view of Quintana further per Sachs is that
"[i]t is prima facie obvious to substitute equivalents known for the
same purpose, e.g. gestures or defined motions to perform an
operation, see MPEP 2144.06." ... The Examiner alleges the
common purpose of "gestures or defined motions to perform an
operation," but the Examiner fails to provide any evidence or
explanation that what Cohen in view of Quintana discloses on the one
hand, and what Sachs discloses on the other hand, are recognized in
the prior art as being equivalent for that purpose.
App. Br. 8 ( emphasis omitted).
The Appellants' argument is not persuasive of reversible error. The
Examiner finds that both Cohen and Sachs use the recognition of gestures, albeit
different gestures, to perform an operation in an electronic device. Ans. 10. That
finding is supported by the record. It is of no moment in the obviousness rejection
on appeal that those gestures are recognized using different techniques in Cohen
and Sachs. See In re Fout, 675 F.2d 297,301 (CCPA 1982) ("Because both
Pagliaro and Waterman teach a method for separating caffeine from oil, it would
have been prima facie obvious to substitute one method for the other" ( emphasis
added)).
Moreover, the Examiner finds that one of ordinary skill in the art would
have modified Cohen based on the teachings in Sachs for the additional reason that
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Application 14/565,137
"Sachs discloses much more robust gesture recognition, and a cost effective way of
utilizing motion sensor data from low-cost inertial sensors to provide a repeatable
and robust gesture recognition." Ans. 10 (citing Sachs ,r 51). The Appellants do
not direct us to any error in the Examiner's finding.
Based on the foregoing, a preponderance of the evidence of record supports
the Examiner's conclusion of obviousness in the rejection of claim 1. The
Appellants do not present arguments in support of the separate patentability of any
of claims 2, 4, 5, 7-12, 14, 15, and 17-20. See Br. 8, 9-10. Therefore, the
obviousness rejections on appeal are sustained.
C. DECISION
The Examiner's decision is affirmed.
No time period for taking any subsequent action in connection with this
appeal may be extended under 37 C.F.R. § 1.136(a)(l )(iv).
AFFIRMED
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