Ex Parte Mistry et alDownload PDFPatent Trial and Appeal BoardMar 27, 201814015926 (P.T.A.B. Mar. 27, 2018) Copy Citation UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE FIRST NAMED INVENTOR 14/015,926 08/30/2013 Pranav Mistry 121588 7590 03/29/2018 Baker Botts L.L.P./Samsung 2001 Ross Avenue SUITE 700 Dallas, TX 75201 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. 082499.0108 5561 EXAMINER PATEL, PREMAL R ART UNIT PAPER NUMBER 2623 NOTIFICATION DATE DELIVERY MODE 03/29/2018 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): PTOmaill@bakerbotts.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte PRANA V MISTRY, SAJID SADI, LINING YAO, and JOHN SNA VEL Y 1 Appeal2017-010511 Application 14/015,926 Technology Center 2600 Before ERIC B. CHEN, MICHAEL J. STRAUSS, and MICHAEL M. BARRY, Administrative Patent Judges. BARRY, Administrative Patent Judge. DECISION ON APPEAL Appellants appeal under 35 U.S.C. § 134(a) from a Final Rejection of claims 1 and 3-52, which are all the pending claims. We have jurisdiction under 35 U.S.C. § 6(b ). We affirm. 1 Appellants identify the Applicant, Samsung Electronics Co., Ltd., as the real party in interest. App. Br. 3. Appeal 2017-010511 Application 14/015,926 Introduction Appellants' disclosure and claims relate to a wearable electronic device. Spec. i-f 2, Title. A device worn on a limb of a user detects "a gesture-recognition-activation event" as well as movement of the limb, and then processes the gesture as an input to the device. Spec., Abstract. Independent claims 33 and dependent claim 52 are representative of the claims on appeal: 33. A method comprising: detecting, by one or more of the sensors of the wearable computing device when worn on a limb of a user, at least one of a plurality of gesture-recognition-activation events that each activate recognition of one or more gestures specifically associated with that activation event, each gesture comprising a predetermined movement of the limb of the user, the plurality of gesture-recognition activation events comprising: a first gesture-recognition activation event associated with a first set of one or more gestures; and a second gesture-recognition activation event associated with a second set of one or more gestures, wherein the second set is different than the first set; detecting, by one or more sensors of the wearable computing device worn on the limb of the user, a movement of the limb; determining, by the wearable computing device, that at least part of the detected movement corresponds to at least one of the gestures specifically associated with at least one of the activation events; and processing, by the wearable computing device, the gesture as input to the computing device. 2 Appeal 2017-010511 Application 14/015,926 52. The wearable computing device of Claim 1, wherein: each gesture-recognition activation event comprises an orientation of: the limb of the user; or the wearable device; and each gesture comprises a movement of the limb of the user or of the device relative to the orientation corresponding to the gesture-recognition activation event. App. Br. (Claims App'x) 21-22, 25. Rejections and References Claims 1, 3, 6-11, 15, 17-19, 22-27, 31, 33-35, 38--43, 47, 49, 50, 51, and 52 stand rejected under pre-AIA 35 U.S.C. § 103(a) as unpatentable over Cauwels et al. (US 2013/01201016 Al; May 16, 2013), Tong et al. (US 2013/ 0278504 Al; Oct. 24, 2013), and Perski et al. (US 2012/0200494 Al; Aug. 9, 2012). Final Act. 2-18. Claims 4, 5, 12-14, 16, 20, 21, 28-30, 32, 36, 37, 44--46, and 48 stand rejected under§ 103(a) as unpatentable over Cauwels, Tong, Perski, and various other references. Final Act. 18-31. ANALYSIS The Board "reviews the obviousness rejection[ s] for error based upon the issues identified by appellant, and in light of the arguments and evidence produced thereon," and treats arguments not made as waived. Ex Parte Frye, 94 USPQ2d 1072, 1075 (BPAI 2010) (precedential) (cited with approval in In re Jung, 637 F.3d 1356, 1365 (Fed. Cir. 2011)); see also 37 C.F.R. § 41.37(c)(l)(iv). 3 Appeal 2017-010511 Application 14/015,926 Appellants argue the independent claims 1, 17, and 33 together as a group. App. Br. 8-12. We select claim 33 as representative of the group. 37 C.F.R. § 41.37(c)(l)(iv). Appellants separately argue dependent claim 52. App. Br. 12-14. Appellants argue claims 3-16, 18-32, and 34--51 based solely on dependency from the independent claims, see App. Br. 14, and, therefore, those dependent claims stand or fall with claim 33. See 37 C.F.R. § 41.37(c)(l)(iv). Claim 33 In rejecting claim 33, the Examiner finds Perski teaches the recited requirements for detecting a "plurality of gesture-recognition activation events comprising: a first gesture-recognition activation event associated with a first set of one or more gestures; and a second gesture-recognition activation event associated with a second set of one or more gestures, wherein the second set is different than the first set." Final Act. 14--15 (citing Perski i-f 73). Appellants argue the Examiner errs in this finding because Perski discloses first and second initializing gestures for a first and second set of "controls," not for a first and second set of "gestures." App. Br. 10. Appellants further contend that even if Perski discloses a "first set of one or more gestures" and a "second set of one or more gestures" the disputed part of Appellant's independent claims is the requirement that the second set of gesutres [sic] is different than the first set of gestures. The Examiner fails to identify any portion of Perski that discloses that feature. Reply Br. 2 (brackets in original omitted). Appellants' arguments are unpersuasive. Perski discloses "when the initializing gesture is identified, switching to the second stage, the second stage to detect a hand movement, ... and to control the device based on the 4 Appeal 2017-010511 Application 14/015,926 hand movement." Perski i-f 72. We agree with the Examiner that Perski's initializing gestures constitute "gesture-recognition activation events," as recited, that Perski teaches using these initialization gestures for switching on (i.e., "activating") recognition of a corresponding "set of controls," and that the set of controls is associated with a corresponding "set of gestures." See Ans. 33. Specifically, Perski discloses first and second initializing gestures that activate switching to corresponding first and second next stages in which there are "a first set of controls" and "a second (and typically different) set of controls to achieve a new functionality of the device (e.g., a first set of controls to control a media player mode and a second set of control[ s] to operate an application such as Power-point™)." Perski i-f 73. In the "second stage" after the initialization gesture, for subsequent control of application functionality, Perski teaches "to detect hand movement" and "control the device based on the hand movement." Id. i-f 72. The artisan of ordinary skill is "not an automaton." KSR Int 'l Co. v. Teleflex, Inc., 550 U.S. 398, 421 (2007). The artisan would have understood that the controls for PowerPoint™ differ from the controls for a media player, and that the corresponding sets of hand gestures for those controls also differ. In view of this, Appellants' contention that Perski neither explicitly nor inherently discloses different sets of gestures for different controls, see Reply Br. 3--4, is unpersuasive-the rejection relies on Perski's explicit disclosure, not inherency, and we agree Perski's disclosure teaches the disputed limitation. Moreover, as the Examiner finds, and we agree, Tong also teaches a "gesture-recognition activation event" associated with a set of gestures. 5 Appeal 2017-010511 Application 14/015,926 Ans. 33 (citing Tong i-fi-120, 42). Specifically Tong discloses "recogniz[ing] a pre-defined start or initiation hand gesture that may be used by start/end module 208 to initiate operation of gesture recognition engine 102 so that gesture identification module 206 provides gesture commands 120 in response to the recognition of dynamic hand gestures." Tong i142. Thus, both Tong and Perski teach using an initial activating gesture to enable recognition of a set of gestures for controlling an application. See Final Act. 3-5; Ans. 32-35. Appellants argue the ordinarily skilled artisan would not have been motivated to combine the teachings of Cauwels and Tong with Perski. App. Br. 11-12. Specifically, Appellants contend "all the functionality of the Cauwels-Tong system is available without multiple activation events, and the Office has not identified any improvement that would occur by adding multiple activation events to that system." Id. at 12; see also Reply Br. 3--4 ( arguing "the Examiner's stated motivation is not supported by the references" and "[t]he Examiner does not identify any support for the assertion that Tang's functionality is limited"). Appellants do not persuade us of Examiner error in the finding of a motivation to combine Perski with the teachings of Tong and Cauwels. Cauwels does not teach gesture-recognition activation, and Appellants do not challenge the Examiner's combination of Cauwels and Tong. As discussed above, Tong teaches detecting only a single gesture-recognition activation event. Perski teaches detecting multiple gesture-recognition activation events. Thus, Perski teaches functionality beyond that taught by Tong. The Examiner reasonably finds a skilled artisan would have been motivated to combine Perski's detecting multiple gesture-recognition events 6 Appeal 2017-010511 Application 14/015,926 to enable different controlling different applications with Cauwels and Tong because it adds to functionality. Ans. 35-36. Appellants argue the Examiner's finding is akin to the scenario in Active Video Networks, Inc. v. Verizon Communications, Inc., 694 F.3d 1312, 1327-28 (Fed. Cir. 2012), in which the rationale of"want[ing] to build something better," that was "more efficient, cheaper," and was "something new" was held to be insufficient as generic and conclusory. App. Br. 12. While we recognize the danger of hindsight bias, Appellants do not persuade us of Examiner error. Our reviewing court, the Federal Circuit, has "repeatedly held that an implicit motivation to combine exists ... when a suggestion may be gleaned from the prior art as a whole," and [b ]ecause the desire to enhance commercial opportunities by improving a product or process is universal-and even common-sensical-we have held that there exists in these situations a motivation to combine prior art references even absent any hint of suggestion in the references themselves. In such situations, the proper question is whether the ordinary artisan possesses knowledge and skills rendering him capable of combining the prior art references." DyStar Textilfarben GmbH & Co. Deutsch/and KG v. CH Patrick Co., 464 F.3d 1356, 1368 (Fed. Cir. 2006). As the Examiner finds, adding Perski' s teaching of detecting multiple gesture-recognition activation events essentially creates a "multiple" of Tong's single gesture-recognition activation event teaching. Ans. 35-36. This is akin to "duplication of parts," which has "no patentable significance unless a new and unexpected result is produced." In re Harza, 274 F.2d 669, 671(CCPA1960). There is no evidence this would have been "uniquely challenging or difficult for one of ordinary skill in the art" or "represented an unobvious step over the prior art." Leapfrog Enters. Inc. v. 7 Appeal 2017-010511 Application 14/015,926 Fisher-Price, Inc., 485 F.3d 1157, 1162 (Fed. Cir. 2007) (citing KSR, 550 U.S. at 418-19). Nor have Appellants provided objective evidence of secondary considerations which our reviewing court guides "operates as a beneficial check on hindsight." Cheese Sys., Inc. v. Tetra Pak Cheese and Powder Sys., 725 F.3d 1341, 1352 (Fed. Cir. 2013). Given the closeness of the functionalities combined from the teachings of Perski and Tong, we are persuaded that here, the principle applies that "[ t ]he combination of familiar elements according to known methods is likely to be obvious when it does no more than yield predictable results." KSR, 550 U.S. at 416. Accordingly, we sustain the rejection of claim 33. In doing so, we adopt as our own the findings and reasons of the Examiner as set forth in the Final Rejection and in the Answer. We also, accordingly, sustain the rejections of claims 3-51, for which Appellants offer no arguments separate from those for claim 1. Claim 52 Appellants further argue the Examiner errs in rejecting claim 52 because the rejection "does not assert that any alleged initializing gesture in Perski is an orientation of the limb of the user or the wearable device as Claim 52 requires." App. Br. 13. This argument is unpersuasive. The Examiner relies on Cauwels, not Perski, for teaching the added limitations of claim 52. See Final Act. 18 (citing Cauwels i-fi-f 140, 163---64, 166) (also explaining that Perski and Tong teach features recited in parent claim); see also Ans. 36 (additionally citing Cauwels i-f 141). Cauwels discloses a wearable device such as a watch with a motion sensor that detects device orientation and that detects when the user makes a gesture such as a sweeping hand motion. Cauwels i-f 140-41, 163---64, Figs. 8 Appeal 2017-010511 Application 14/015,926 16-18, 24. We agree with the Examiner this teaches the added requirements of claim 52. Appellants contend the Examiner "does not address at all Appellants' argument that the Examiner has failed to identify any prior art reference that discloses Claim 52's requirements of two separate orientations of the limb of the user or the wearable device, each of which is associated with a different set of gestures comprising a movement of the limb or device relative to that orientation." Reply Br. 5. We disagree. The rejection of claim 52 states that "Perski teaches the first initializing gesture and a second initializing gesture as explained for claim 1 above." Final Act. 18. The rejection finds that Cauwels, which teaches the wearable device attached to the wrist for detecting gesture movement and orientation of the device, in combination with Perski, teaches claim 52 's requirement for "each gesture-recognition activation event compris[ing] an orientation of ... the wearable device." Id. The Examiner also finds that Cauwels in combination with Perski teaches "each gesture comprises a movement ... of the device relative to the orientation corresponding to the gesture recognition activation event," as recited. Id. The requirements related to "a different set of gestures" are not recited in claim 52, and, regardless, were addressed in the rejection of the parent independent claim, as discussed above for claim 33. Accordingly, we sustain the rejection of claim 52. In doing so, we adopt as our own the Examiner's findings and reasons as set forth in the Final Rejection and in the Answer. 9 Appeal 2017-010511 Application 14/015,926 DECISION For the above reasons, we affirm the Examiner's decision rejecting claims 1 and 3-52 under 35 U.S.C. § 103(a). No time period for taking any subsequent action in connection with this appeal may be extended under 3 7 C.F .R. § 1.13 6( a )(1 )(iv). AFFIRMED 10 Copy with citationCopy as parenthetical citation