Ex Parte Hunt et al

Patent Trials and Appeals Board

Apr 10, 2019

14595435 - (D) (P.T.A.B. Apr. 10, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
14/595,435 01/13/2015 Alexander Hunt
23380 7590 04/12/2019
TUCKER ELLIS LLP
950 MAIN A VENUE
SUITE 1100
CLEVELAND, OH 44113-7213
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.
PS14 1028US1 5216
EXAMINER
EDWARDS,MARK
ART UNIT PAPER NUMBER
2624
NOTIFICATION DATE DELIVERY MODE
04/12/2019 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):
patents@tuckerellis.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte ALEXANDER HUNT, ANDREAS KRISTENSSON,
MAGNUS LANDQVIST, and OLA THORN1
Appeal2018-007565
Application 14/595,435
Technology Center 2600
Before CAROLYN D. THOMAS, JOSEPH P. LENTIVECH, and
SCOTT RAEVSKY, Administrative Patent Judges.
RAEVSKY, Administrative Patent Judge.
DECISION ON APPEAL
Appellants seek our review under 35 U.S.C. § 134(a) of the
Examiner's Final Rejection of claims 1, 4---6, 8, 9, 11, 12, 14, 15, and 21, all
the pending claims in the present application (see Claims Appendix). We
have jurisdiction over the appeal under 35 U.S.C. § 6(b).
We AFFIRM.
1 Appellants name Sony Mobile Communications Inc. as the real party in
interest (App. Br. 2).
Appeal 2018-007565
Application 14/595,435
STATEMENT OF THE CASE
Appellants' invention generally relates to analyzing an ultrasonic
signal effected by on-body action. See Abstract. Claim 1, reproduced
below, is illustrative of the claimed subject matter:
1. A method comprising:
transmitting, by a device that is worn by a user and having
a first ultrasonic transmitter adjacent to a first side of the device
and a second ultrasonic transmitter adjacent to a second side of
the device:
a first ultrasonic signal at a first ultrasonic frequency by
the first ultrasonic transmitter; and
a second ultrasonic signal at a second ultrasonic frequency
by the second ultrasonic transmitter, the second ultrasonic
frequency being different than the first ultrasonic frequency,
wherein the first and second ultrasonic signals propagate
on the user's body;
receiving, by the device:
a first ultrasound event that includes receipt of the
first ultrasonic signal that propagated on the user's body as
effected by a first on-body action, performed by the user
on the user's body on one of the first or second sides of the
device, in a first area in which the first ultrasonic signal
has propagated; and
a second ultrasound event that includes receipt of
the second ultrasonic signal that propagated on the user's
body as effected by a second on-body action, performed
by the user on the user's body on the other of the first or
second sides of the device, in a second area in which the
second ultrasonic signal has propagated,
wherein the first and second on-body actions
collectively are a multi-touch action in which each on-
body action is a touch gesture simultaneously performed
on the respective first and second sides of the device;
analyzing, by the device, the received ultrasound events to
determine the side of the device at which the first and second on-
body actions are respectively performed relative to the device
and determine the touch gesture corresponding to each on-body
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Application 14/595,435
action, the analyzing including assessing the frequency of the
received ultrasonic events; and
selecting and performing, by the device, an input
associated with the determined sides and each corresponding
touch gesture.
App. Br. 14--15 (Claims Appendix.)
Appellants appeal the following rejections:
Claims 1, 4--6, 8, 9, 11, 12, 14, and 15 are rejected under 35 U.S.C.
§ 103 2 as being unpatentable over Park et al. (US 2015/0324000 Al, pub.
Nov. 12, 2015), Butler et al. (Alex Butler et al., SideSight: Multi- "touch"
Interaction Around Small Devices, UIST '08, (2008)), and Tan et al. (US
2011/0133934 Al, pub. June 9, 2011). Final Act. 3.
Claim 21 is rejected under 35 U.S.C § 103 3 as being unpatentable
over Park, Butler, Tan, and Edwards (US 5,142,506, iss. Aug. 25, 1992). Id.
at 16-17.
We review the appealed rejections for error based upon the issues
identified by Appellants and in light of the arguments and evidence
produced thereon. Ex parte Frye, 94 USPQ2d 1072, 107 5 (BP AI 2010)
(precedential).
ANALYSIS
Issue 1: Did the Examiner err in finding that the combined teachings
of Park, Butler, and Tan teach or suggest claim 1 's "transmitting ... a first
2 The Final Action states "I02(a)(2)" in the main body of the rejection but
states "Claim Rejections - 35 USC§ 103" in the section heading on the
previous page. Final Act. 2-3. We therefore view the Examiner's reference
to"§ I02(a)(2)" as a typographical error and apply§ 103 in our review.
3 See supra, n. 2.
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Appeal 2018-007565
Application 14/595,435
ultrasonic signal at a first ultrasonic frequency by the first ultrasonic
transmitter [and] a second ultrasonic signal at a second ultrasonic frequency
by the second ultrasonic transmitter; [ and] analyzing including assessing the
frequency of the received ultrasonic events"? See App. Br. 7, 11; Reply Br.
4.
Appellants contend "Park discloses neither emission nor analysis of
two different ultrasonic frequencies." App. Br. 7. Specifically, Appellants
contend "Park is focused on sequential gestures (i.e., 'gesture pattern')
performed on a single side of a device." Id. Appellants similarly contend,
"like Park, Butler discloses neither emission nor analysis of two different
ultrasonic frequencies." Id. at 10. However, the Examiner relies not on Park
or Butler, but on Tan for the disputed limitations. Final Act. 7-8.
Appellants' arguments attacking Park and Butler in isolation from Tan do
not persuasively rebut the underlying factual findings made by the
Examiner, which are based upon the combined teachings and suggestions of
the cited references. One cannot show non-obviousness by attacking
references individually, where the rejections are based on combinations of
references. In re Merck & Co., Inc., 800 F.2d 1091, 1097 (Fed. Cir. 1986).
Appellants further contend Tan "fails to disclose a device that emits
two different ultrasonic frequencies." App. Br. 11. Specifically, Appellants
contend, "Tan's disclosure relies on an external source of mechanical energy
(e.g., a user tapping their skin) and does not disclose the device having
transmitters." Id. However, the Examiner finds, and Appellants do not
dispute, that Park teaches or suggests "transmitting" a first and second
ultrasonic signal (Final Act. 3--4), and the Examiner merely brings in Tan to
teach first and second ultrasonic frequencies being different. Final Act. 7.
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Application 14/595,435
Specifically, Tan discloses "an array of highly-tuned vibration sensors"
having "[a] different set of resonant frequencies." Tan ,r,r 27, 29. Thus,
Appellants again impermissibly attack the references in isolation.
Issue 2: Did the Examiner err in finding that the combined teachings
of Park, Butler, and Tan teach or suggest claim 1 's "wherein the first and
second on-body actions collectively are a multi-touch action in which each
on-body action is a touch gesture simultaneously performed on the
respective first and second sides of the device"? See App. Br. 2, 10; Reply
Br. 3.
Appellants contend "Park fails to disclose simultaneous inputs.
Instead, Park focuses on multiple sensor types simultaneously detecting a
single input." App. Br. 7. The Examiner, however, relies on Butler for the
disputed limitation (Final Act. 6), and thus Appellants' Park argument
impermissibly attacks the references in isolation.
Appellants next concede that "Butler ... disclos[ es] sensing of two
simultaneous gestures on opposite sides of a device," but Appellants then
critique Butler's simultaneous disclosure as "only [ occurring] with infra-red
proximity sensors used when the device is resting on a flat surface such as a
tabletop." Id. at 10. Continuing, Appellants argue "Butler briefly mentions
the possibility of ultrasound sensing ... but does not discuss any
implementing technical details that teach or suggest how to actually use
ultrasound when the touched surface is a human body." Id. Appellants'
argument is unpersuasive because Appellants again argue the references
individually, as the Examiner relied on Park for the "ultrasound" and "on-
body" limitations of the claim. See Final Act. 3-5. Moreover, Appellants'
implied lack of enablement critique of Butler's ultrasonics disclosure is
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Application 14/595,435
inapposite because "[u]nder § 103, ... a reference need not be enabled; it
qualifies as a prior art, regardless, for whatever is disclosed therein." See
Amgen Inc. v. Hoechst Marion Roussel, Inc., 314 F.3d 1313, 1357 (Fed. Cir.
2003).
Issue 3: Did the Examiner err in finding that one of ordinary skill in
the art would have combined Park and Butler? See App. Br. 11-12.
Appellants contend "modifying Park and Butler to emit and detect at
multiple ultrasonic frequencies in the specifically claimed manner would
only result from impermissible hindsight." Id. at 11. "This is especially
true," Appellants argue, "since none of the references describe details of the
ultrasonic signal(s) emitted by the device that are respectively and
simultaneously affected by user touch." Id. at 12. But Appellants' argument
is unavailing given that our findings above show that the references teach or
suggest these limitations.
Furthermore,
[a]ny judgment on obviousness is in a sense necessarily a
reconstruction based upon hindsight reasoning, but so long as it
takes into account only knowledge which was within the level
of ordinary skill at the time the claimed invention was made
and does not include knowledge gleaned only from applicant's
disclosure, such a reconstruction is proper.
In re McLaughlin, 443 F.2d 1392, 1395 (CCPA 1971). In making the§ 103
rejection, the Examiner supplied the requisite factual basis by combining the
teachings of Park, Butler, and Tan, without relying on "knowledge gleaned
only from [Appellants'] disclosure." See id.; Final Act. 3-8. Thus,
Appellants do not persuade us that the Examiner relied on hindsight to
combine Park, Butler, and Tan.
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Application 14/595,435
Accordingly, we sustain the Examiner's rejection of claim 1.
Appellants' arguments for independent claim 8 rely on the same arguments
as for claim 1, and Appellants do not argue separate patentability for the
dependent claims. See App. Br. 7, 12-13. We therefore also sustain the
Examiner's§ 103 rejection of claims 4--6, 8, 9, 11, 12, 14, 15, and 21.
DECISION
We affirm the Examiner's 35 U.S.C. § 103 rejections of claims 1, 4--6,
8, 9, 11, 12, 14, 15, and 21.
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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