Ex Parte Katz et al

Patent Trials and Appeals Board

Jan 22, 2019

15256481 - (D) (P.T.A.B. Jan. 22, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
15/256,481 09/02/2016 Itay Katz
22852 7590 01/24/2019
FINNEGAN, HENDERSON, FARABOW, GARRETT & DUNNER
LLP
901 NEW YORK A VENUE, NW
WASHINGTON, DC 20001-4413
UNITED ST A TES OF AMERICA
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.
l 1968.00ll-07000 2291
EXAMINER
CHOWDHURY, AFROZA Y
ART UNIT PAPER NUMBER
2628
NOTIFICATION DATE DELIVERY MODE
01/24/2019 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):
regional-desk@finnegan.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte ITAY KATZ and AMNON SHENFELD
Appeal2018-006656
Application 15/256,481
Technology Center 2600
Before JOHNNY A. KUMAR, JASON J. CHUNG, and
NORMAN H. BEAMER, Administrative Patent Judges.
KUMAR, Administrative Patent Judge.
DECISION ON APPEAL 1
1 Appellants have filed related Appeals in copending applications: U.S.
Patent Application No. 14/345,592; U.S. Patent Application No. 15/060,533;
U.S. Patent Application No. 15/090,527; U.S. Patent Application No.
15/096,674; and U.S. Patent Application No. 15/144,209. Br. 3.
Appeal2018-006656
Application 15/256,481
STATEMENT OF CASE
Appellants2 appeal under 35 U.S.C. § I34(a) from a Final Rejection of
claims 57-76. Claims 1-56 have been cancelled. Br. 32. We have
jurisdiction under 35 U.S.C. § 6(b).
We affirm.
Illustrative Claim
Illustrative claim 57 under appeal reads as follows:
57. An immersive wearable display device having a plurality of
operation modes, comprising:
at least one processor configured to:
receive, from an image sensor, image information
associated with a real world scene;
detect, in the image information, a predefined gesture
performed by the user; and
change an operation mode of the image sensor from a first
operation mode to a second operation mode associated with the
detected predefined gesture.
Rejections on Appeal
Claims 57, 61, 63, and 67 are provisionally rejected on the ground of
nonstatutory double patenting as being unpatentable over claims 57, 69, 72,
and 79 of copending Application No. 15/060,533. 3
Claims 57---60, 63---66, and 70-73 are rejected under 35 U.S.C.
§ I02(e) as being anticipated by Ota (US 2013/0050069 Al, published Feb.
28, 2013).
2 Appellants identify eyeSight Mobile Technologies Ltd., as the real party in
interest. Br. 2.
3 Arguments are not presented for this provisional rejection. Therefore, we
affirm the Examiner's rejection proforma. Except for our ultimate decision,
this rejection of these claims is not discussed further herein.
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Application 15/256,481
Claims 61, 62, and 67----69 are rejected under 35 U.S.C. § I03(a) as
being unpatentable over Ota in view of Maltz (US 2012/0019662 Al,
published Jan. 26, 2012).
Claims 74--76 are rejected under 35 U.S.C. § I03(a) as being
unpatentable over Ota in view of Kipman (US 2010/0302015 Al, published
Dec. 2, 2010).
Appellants ' Contentions
1. Appellants contend that the Examiner erred in rejecting claim 57
under 35 U.S.C. § I02(e) because
Ota fails to disclose, for example, "chang[ing] an operation
mode of the image sensor from a first operation mode to a
second operation mode associated with the detected
predefined gesture" as recited in claim 57.
Br. 10-15.
2. Appellants contend that the Examiner erred in rejecting claim 70
under 35 U.S.C. § I02(e) because
Ota fails to disclose, for example, an "external device ...
configured to provide a notification to the user in response to the
command" as recited in claim 70.
Br. 15-20. 4
3. Appellants contend that the Examiner erred in rejecting claims 59
under 35 U.S.C. § I02(e) because
Ota fails to disclose "wherein the change in operation mode
comprises a change in a capture rate of images captured by the
image sensor," as recited in claim 59.
Br. 20-23.
4 The patentability of claims 74--76 is not separately argued from that of
claim 70. See Br. 30. Except for our ultimate decision, claims 74--76 are not
discussed further herein.
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Application 15/256,481
4. Appellants contend that the Examiner erred in rejecting claim 60
under 35 U.S.C. § 102(e) because
Ota fails to disclose "wherein the change in operation mode
comprises a change in a resolution of images captured by the
image sensor" as recited in claim 60.
Br. 23-27.
5. Appellants contend that the Examiner erred in rejecting claims 61,
62, and 67----69 under 35 U.S.C. § 103 because "Maltz fails to cure the
deficiencies of Ota." Br. 28-29.
Issues on Appeal
Did the Examiner err in rejecting claim 57----60, 63-66, and 70-73 as
being anticipated?
Did the Examiner err in rejecting claims 61, 62, 67----69, and 74--76 as
being obvious?
ANALYSIS
We have reviewed the Examiner's rejections in light of Appellants'
arguments that the Examiner has erred. We disagree with Appellants'
conclusions. Except as noted herein, we adopt as our own: (1) the findings
and reasons set forth by the Examiner in the action from which the appeal is
taken (Final Act. 10-26); and (2) the reasons set forth by the Examiner in the
Examiner's Answer (Ans. 2-7) in response to the Appellants' Appeal Brief.
We concur with the conclusions reached by the Examiner. We highlight the
following.
As to Appellants' above contention 1, we are not persuaded the
Examiner erred. We agree with the Examiner that Ota teaches all the claim
elements of claims 57 and 63. Final Act. 10-12; Ans. 3--4 (citing Ota
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Appeal2018-006656
Application 15/256,481
,r,r [0026], [0041], [0048], [0050], and [0051]). In particular, we agree with
the Examiner's finding regarding Ota's disclosure:
Note: user touches a virtual 3D reference point in the space and
touching button can change made of operation; therefore, using
broadest reasonable interpretation, it is interpreted that
operation mode of image sensor can be changed based on the
detected predefined gesture.
Ans. 3--4 ( emphasis omitted).
As to Appellants' contentions 2 through 4 regarding claims 59, 60,
and 70 (Br. 15-27), the Examiner has rebutted each of those arguments
supported by sufficient evidence. (Ans. 4--7). Therefore, we adopt the
Examiner's findings and underlying reasoning, which are incorporated
herein by reference. We see no error in these unrebutted findings.
Accordingly, we sustain the Examiner's§ 102 rejection of claims 57,
59, 60, 63, and 70, as well as dependent claims 58, 61---62, 64---66, and 71-73
not separately argued.
As to above contention 5, we agree with the Examiner's analysis
(Ans. 7) in response to Appellants' arguments. We also agree with the
Examiner that
Ota teaches change an operation mode of the image sensor
from a first operation mode to a second operation mode
associated with the detected predefined gesture ( see detail
rejection for claim 57 as stated above). Maltz reference is used
to show change of operation mode from a standby mode to an
active mode.
Id. at 7.
We observe no Reply Brief is of record to rebut the Examiner's
findings and responses to Appellants' arguments about the disputed features.
Therefore, in the absence of persuasive rebuttal evidence or argument to
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Application 15/256,481
persuade us otherwise, we adopt the Examiner's findings and underlying
reasoning, which are incorporated herein by reference. Consequently, we
sustain the rejection of claims 57-76.
DECISION
We affirm the Examiner's rejections of claims 57-60, 63---66, and 70-
73 as being anticipated under 35 U.S.C. § 102(e).
We affirm the Examiner's rejections of claims 61, 62, 67-69, and 74--
76 as being unpatentable under 35 U.S.C. § 103(a).
We summarily affirm the Examiner's provisional rejection of claims
57, 61, 63, and 67 on the ground ofnonstatutory obviousness-type double
patenting.
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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