Ex Parte VanBlon et al

Patent Trial and Appeal Board

May 25, 2018

14095369 (P.T.A.B. May. 25, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
14/095,369 12/03/2013
63203 7590
ROGITZ & AS SOCIA TES
4420 Hotel Circle Court
SUITE 230
SAN DIEGO, CA 92108
05/30/2018
FIRST NAMED INVENTOR
Russell Speight V anBlon
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.
RPS920130123-US-NP 6758
EXAMINER
LE, THUYKHANH
ART UNIT PAPER NUMBER
2658
NOTIFICATION DATE DELIVERY MODE
05/30/2018 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):
Noelle@rogitz.com
eofficeaction@appcoll.com
J ohn@rogitz.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte RUSSELL SPEIGHT V ANBLON, SUZANNE MARION
BEAUMONT, and ROD DAVID WAL TERMANN
Appeal2017-010726
Application 14/095,369 1
Technology Center 2600
Before ALLEN R. MACDONALD, JEREMY J. CURCURI, and
SHARON PENICK, Administrative Patent Judges.
MacDONALD, Administrative Patent Judge.
DECISION ON APPEAL
1 The real party in interest is Lenovo Singapore PTE. Ltd. App. Br. 2.
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Application 14/095,369
STATEMENT OF THE CASE
Appellants appeal under 35 U.S.C. § 134(a) from a Final Rejection of
claims 1--4, 13, 16, 19, 20, 24, 25, 31, and 33--41. Final Act. 1. We have
jurisdiction under 35 U.S.C. § 6(b ).
Appellants' Appeal Brief presents arguments directed to claims 2, 3,
16, 19, 20, 24, 31, 33, 34, 36, 37, and 39--41, and also covering claims 4 and
3 8 depending from claims 2 and 20 respectively. Appellants do not present
arguments directed to claims 1, 13, and 3 5. Therefore, we affirm proforma
the rejections of claims 1, 13, and 3 5 in this proceeding. 2
Representative Claims
Representative claims 13 and 33 under appeal read as follows:
13. A method comprising:
receiving, at a device, a first portion of an audible input
sequence, the audible input sequence being provided by a user;
identifying, subsequent to receiving the first portion, an audible
input sequence separator spoken by the user;
receiving, at the device and subsequent to the audible input
sequence separator being spoken, a second portion of an audible input
sequence; and
processing the audible input sequence based on the first portion
and the second portion but not processing the audible input sequence
using the audible input sequence separator.
33. The method of Claim 13, wherein the audible input sequence
separator is identified based on a third portion of the audible input
sequence being unintelligible.
2 "An appeal, when taken, is presumed to be taken from the rejection of all
claims under rejection unless cancelled by an amendment filed by the
applicant and entered by the Office." 37 C.F.R. § 4I.31(c).
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Rejections3
1. The Examiner rejected claims 13 and 33-37 under 35 U.S.C.
§ I02(a)(l) as being anticipated by Dorai et al. (US 7,890,327 B2; Feb. 15,
2011). 4
2. The Examiner rejected claim 19 ( depending from claim 13) under
35 U.S.C. § I03(a) as being unpatentable over the combination ofDorai,
Vasilieffet al. (US 2013/0021459 Al; Jan. 24, 2013), and Gurram et al. (US
2007/0124507 Al; May 31, 2007).
3. The Examiner rejected claims 1, 24, and 31 under 35 U.S.C.
§ I03(a) as being unpatentable over the combination of Han et al. (US
2012/0304067 Al; Nov. 29, 2012) and Vasilieff. 5
4. The Examiner rejected claim 25 under 35 U.S.C. § I03(a) as being
unpatentable over the combination of Han, Vasilieff, and Hamel et al. (US
2014/0176767 Al; June 26, 2014). 6
5. The Examiner rejected claim 2 under 35 U.S.C. § I03(a) as being
unpatentable over the combination of Han, Vasilieff, and Burckart et al. (US
2009/0138507 Al; May 28, 2009).
3 The Examiner has withdrawn the rejections of claims 3 and 16. Ans. 16.
4 Appellants do not present arguments directed to claims 13 and 3 5.
Appellants argue separate patentability for claims 33, 34, 36, and 37.
5 Appellants do not present arguments directed to claim 1. Appellants argue
separate patentability for claims 24 and 31.
6 Appellants do not argue separate patentability for claim 25. Therefore, the
rejection of claim 25 turns on our decision as to claim 24. Except for our
ultimate decision, we do not discuss claim 25 further herein.
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6. The Examiner rejected claim 4 under 35 U.S.C. § I03(a) as being
unpatentable over the combination of Han, Vasilieff, Burckart and Kim et al.
(US 2011/0071830 Al; Mar. 24, 2011). 7
7. The Examiner rejected claims 20 and 38--41 under 35 U.S.C.
§ I03(a) as being unpatentable over the combination of Dorai and Vasilieff. 8
Issues on Appeal
Did the Examiner err in rejecting claims 33, 34, 36, and 37 as being
anticipated?
Did the Examiner err in rejecting claims 2, 19, 20, 24, 31, 39, 40, and
41 as being obvious?
ANALYSIS
A. Introduction
We have reviewed the Examiner's rejections in light of Appellants'
arguments (Appeal Brief and Reply Brief) that the Examiner has erred.
7 Appellants do not argue separate patentability for claim 4. Therefore, our
result regarding the rejection of claim 4 turns on our decision as to claim 2.
Except for our ultimate decision, we do not discuss claim 4 further herein.
8 Appellants argue separate patentability for claims 20, 39, 40, and 41.
Appellants do not argue separate patentability for claim 3 8. Therefore,
claim 38 stands with claim 20. Except for our ultimate decision, we do not
discuss claim 3 8 further herein.
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B. Claim 33
Appellants raise the following argument in contending that the
Examiner erred in rejecting claim 33 under 35 U.S.C. § 102(a)(l):
Dorai's pre-processing appears to find "linkage phrases" such as
"um", "ah", "huh" to actually be intelligible by Dorai's device
rather than somehow being unintelligible. This is because the
linkage phrases are defined, and then when spoken they are
recognized by the device so that the comparison of incoming
speech segments can be performed in which the defined linkage
phrases are recognized and used for the comparison.
Accordingly, it does not appear that the relied-upon portion of
Dorai at col. 3, lines 56-57 anticipates Claim 33 .... Dorai at
this portion appears to disclose something that is more of an
opposite - intelligible input rather than unintelligible input, albeit
intelligible linkage phrases.
App. Br. 11 ( emphasis added).
As to Appellants' contention regarding claim 33, we disagree.
Appellants argue the "linkage phrases" of Dorai are intelligible to the device
in Dorai because the device recognizes these are predefined linkage phrases.
Yet, Appellants describe their "'speech separator"' as unintelligible after
their device identifies these speech separators in a table of such separators.
Spec. 14. We agree with Appellants' use of the term unintelligible in the
Specification in that Appellants' device does not understand or assign a
particular meaning to a speech separator beyond recognizing it as such. 9
9 Dictionary.com. Dictionary.com Unabridged. Random House, Inc.
http://www.dictionary.com (accessed: May 3, 2018).
Intelligible - capable of being understood.
Understood - simple past tense and past participle of understand.
Understand (verb (used with object), understood, understanding)-to
perceive the meaning of; comprehend; to assign a meaning to;
interpret.
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However, this is the same level of understanding set forth in Dorai. We find
Dorai's device does not understand or assign a particular meaning to a
linkage phrase beyond recognizing it as such. We thus agree with the
Examiner that Dorai's linkage phrases are unintelligible to the device in
Dorai consistent with Appellants' use of that term.
C. Claim 34
Appellants raise the following argument in contending that the
Examiner erred in rejecting claim 34 under 35 U.S.C. § 103(a). [In Dorai]
"no mention of a 'data table' or any cognizable synonym is made." App. Br.
12.
The Examiner responds:
Dorai identifies the linkage phrases which are meaningless
word[ s] in the third portion of the audio content. These linkage
phrases are removed before execute the command which are
meaningful word. The system in Dorai does not consider (i.e.[,]
ignore) these linkage phrases in processing and executing the
command. "[A] data table" in the claimed language is interpreted
as predefined data. Dorai uses speech pattern to identify the
linkage phrases. Speech patterns are predefined and stored in the
system. That is construed as a data table.
Ans. 19--20.
As to Appellants' contention the Examiner erred in rejecting claim 34,
we disagree. We agree with Examiner's response. Additionally, the relied
upon portion ofDorai (col. 3, lines 57-59) sets forth a comma separated list
of terms. We conclude an artisan would understand this to be a data table.
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D. Claim 36
Appellants raise the following arguments in contending that the
Examiner erred in rejecting claim 36 under 35 U.S.C. § 103(a):
[N]owhere in the entirety of Dorai is the word "language"
mentioned, and the rejection has not explained how the relied-
upon linkage phrases are being reasonably construed as being in
a "different language" than other things that might be spoken by
Dorai' s user, particularly when "language" is construed in
conformance with the law.
App. Br. 13-14.
Dorai fails to anticipate Claim 36 since [col. 3, lines 56-59] does
not disclose "recognizing" Dorai's linkage phrases as pertaining
to a first language different from a second language
corresponding to other words and sentences spoken by Dorai' s
user.
App. Br. 14.
As to Appellants' contention regarding claim 36, we disagree.
Appellants state, "the rejection has not explained how the relied-upon
linkage phrases are being reasonably construed as being in a 'different
language' than other things that might be spoken by Dorai's user." The
Final Rejection at page 4 contradicts this argument. In the rejection, the
Examiner compares the teaching of Dorai to Appellants' embodiment at
page 14 of the Specification (paragraph [0041] of the published application).
Appellants describe the embodiment they present at page 14 of their
Specification as "English" (i.e., "'restaurant"') and "not English" ("'uhh"').
We agree with the Examiner's interpretation of these as first and second
languages. 10 We agree with the Examiner's reasoning as to claim 36.
10 We also note "first language" and "second language" are subjective terms.
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E. Claim 37
Appellants raise the following argument in contending that the
Examiner erred in rejecting claim 37 under 35 U.S.C. § 103(a):
[Dorai at col. 3, lines 56-59] explicitly discloses "recognizing"
the linkage phrases based on their definition as speech patterns
people use to connect words and sentences, not recognizing them
specifically as not being a word in the language in which
Dorai's connecting words and sentences are made.
App. Br. 15.
As to Appellants' contention regarding claim 3 7, we disagree for the
same reason set forth above for claim 36.
F. Claim 19
Appellants raise the following argument in contending that the
Examiner erred in rejecting claim 19 under 35 U.S.C. § 103(a):
[Gurram's paragraph 14] says nothing about determining
anything related to whether a user has stopped providing audible
input and that a user is engaging in another operation besides
providing audible input.
App. Br. 17.
As to Appellants' contention regarding claim 19, we disagree. We
agree with the Examiner's assessment that Appellants are engaging in
"piecemeal analysis of the references." Ans. 23. It is well established that
one cannot show non-obviousness by attacking references individually
where the rejections are based on combinations of references. See In re
Keller, 642 F.2d 413,425 (CCPA 1981); In re Merck & Co., Inc., 800 F.2d
1091, 1097 (Fed. Cir. 1986). References must be read, not in isolation, but
for what they fairly teach in combination with the prior art as a whole.
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Merck, 800 F .2d at 1097. Therefore, Appellants' argument does not
persuade us the Examiner erred.
Separately, Appellants overlook that Vasilieff teaches, (1) "press[ing]
a button to signal the start and end of speech," and (2) using facial
recognition in place of pushing a button. Vasilieff 7. We conclude that
combining these two techniques and having the press of the button also
trigger performing a command received verbally (i.e., "another operation")
is well within the skill in the art.
G. Claim 24
Appellants raise the following argument in contending that the
Examiner erred in rejecting claim 24 under 35 U.S.C. § 103(a):
[I]t does not appear that the relied-upon portions of Figure 4 and
paragraph 91 actually disclose anything analogous to a
determination that a device has been moved from outside a
threshold distance to a user to inside the threshold distance being
based on at least one signal from each of two sensors.
App. Br. 19.
As to Appellants' contention regarding claim 24, we disagree. The
Examiner's rejection cites Han paragraph 28, 39, and 58, (discussing Figure
1) and paragraph 91 (discussing Figure 4). Final Act. 8-9 (rejecting claims
1 and 24 ). In determining the threshold value, the Examiner correctly points
out that Han discloses detecting two things: a "calculated position of the
face 102" and a "calculated position of the hand." Final Act. 8. The
Examiner also correctly points out that Han at paragraph 91 discloses
numerous types of sensors are alternatively used. Final Act. 8. We note
Han at paragraphs 33-35 (describing Figure 1) discloses the two detected
positions (hand, face) can each be determined by numerous methods. Based
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on these teachings of Han, we agree with the Examiner's conclusion that the
claimed "two sensors" and "based at least in part on at least one signal from
each of the two sensors" would have been obvious. We deem the teachings
of Han to render obvious using a separate sensor for detecting each position
used in the threshold calculation taught by Han.
H. Claim 3 1
Appellants raise the following argument in contending that the
Examiner erred in rejecting claim 31 under 35 U.S.C. § 103(a):
[Han's] paragraph 58 also makes absolutely no mention of a
device being held still after being moved to inside the allegedly
analogous "threshold distance", a device being held at a
predefined orientation after being moved to inside the allegedly
analogous "threshold distance", or a device being held at a
constant distance from the user after being moved to inside the
allegedly analogous "threshold distance". This paragraph
merely says that when a distance between the position of the face
and the device held in the hand is less than [] the allegedly
analogous threshold value, the control unit may start sound
recognition. Here, too, "constant distance" of some sort is not
disclosed or required and, according to paragraph 58, varying
distances still less than the threshold value would conceivably
suffice.
App. Br. 20-21.
As to Appellants' contention regarding claim 31, we disagree.
Appellants acknowledge that Han discloses "varying distances still less than
the threshold value would conceivably suffice." However, Appellants
overlook that they exemplify "'constant distance"' as "substantially constant
such as e.g.[,] within an inch." Spec. 23. Contrary to Appellants' argument,
we conclude Han's "varying distances still less than the threshold" is "a
constant distance from the user" (as Appellants define "constant").
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I. Claim 2
Appellants' claim 2 requires "determine that a pause in providing the
audible input sequence has occurred" and "wherein the pause comprises an
audible sequence separator that is unintelligible to the device."
Appellants raise the following argument in contending that the
Examiner erred in rejecting claim 2 under 35 U.S.C. § 103(a):
[The Examiner finds] Burckart's paragraph 23 discloses
something analogous to this even though Han and Vasilieff fail
to disclose as much. However, the relied-upon portion of
paragraph 23 at best discusses that a user may talk to a nearby
individual and that this "can selectively trigger playback to be
paused", with this playback being related to audio playback from
a portable audio device. This concept does not appear to have
any relevance to an "audible sequence separator" related to an
audible input sequence that might be provided to any such
device, much less an "audible sequence separator" that is
unintelligible to the device as required by the claim.
App. Br. 21-22.
As to Appellants' contention regarding claim 2, we agree. We
conclude, consistent with Appellants' argument, there is insufficient
articulated reasoning to support the Examiner's finding that Burckart's
paragraph 23 teaches a pause comprises an audible sequence separator that is
unintelligible to the device. Therefore, we conclude that there is insufficient
articulated reasoning to support the Examiner's final conclusion that claim 2
would have been obvious to one of ordinary skill in the art at the time of
Appellants' invention.
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J. Claim 20
Appellants' claim 20 requires "determining whether at least a portion
of the first audible input is incompatible with at least a portion of the second
audible input." The Examiner finds that Dorai et al. disclose this limitation
at column 3, lines 57-59. Essentially, the Examiner construes incompatible
so that "meaningless words, e.g., 'um', 'ah', 'huh', etc., are incompatible
with the meaningful words spoken by a speaker." Final Act. 14 (emphasis
omitted).
Appellants raise the following argument in contending that the
Examiner erred in rejecting claim 20 under 35 U.S.C. § 103(a):
The rejection is [] missing an explanation as to how one
portion of Dorai' s "audible input" might be incompatible with
another portion of Dorai's "audible input". As indicated before,
it is unclear whether the relied-upon linkage phrases are being
construed as analogous to the first audible input recited in Claim
20 or the second audible input recited in Claim 20, but in either
case Dorai at col. 3, lines 56-59 certainly does not disclose
determining whether one portion of its user's speech is
incompatible in relation to another portion of that user's speech.
Again, a linkage phrase appears to be removed purely based on
its own existence, in isolation from whatever else Dorai's user
might speak but that is not referenced at this portion of Dorai.
App. Br. 6.
The Examiner responds:
The Appellant is incorrect in his argument. In the Final Office
Action the Examiner has explained that the linkage phrases, e.g.,
"um", "ah", "huh", etc. used to connect words/sentences in a
continuous speech is/are meaningless word(s). The first audible
input including these meaningless words is incompatible with the
second audible input including the meaningful words spoken by
a speaker.
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Ans. 16.
As to Appellants' contention regarding claim 20, we agree. 11 We do
not find the word incompatible in Appellants' Specification. However, we
conclude the description (Spec. 24--25) of "conflicting audible inputs,"
referenced by Appellants Summary (App. Br. 4), supports use of the term
incompatible in claim 20. Consistent with the ordinary meaning of this
term, we conclude the term incompatible requires that "at least a portion of
the first audible input" and "at least a portion of the second audible input"
are unable to exist together in harmony. 12 We conclude this requires more
than one of the two audible inputs being "meaningless" as the Examiner
finds with Dorai's disclosed "word" versus "linkage phrase" relationship.
Rather, we conclude there must be actual conflict between the meanings of
"at least a portion of the first audible input" and "at least a portion of the
second audible input."
We conclude, consistent with Appellants' arguments, there is
insufficient articulated reasoning to support the Examiner's finding that
Dorai at column 3, lines 56-59, teaches a portion of a first audible input that
is incompatible with at least a portion of a second audible input. Therefore,
we conclude that there is insufficient articulated reasoning to support the
11 Our decision as to claim 20 is determinative as to the rejection of claims
3 8--41. Therefore, we do not address herein Appellants' arguments directed
to claims 3 9, 40, and 41.
12 Dictionary.com. Dictionary.com Unabridged. Random House, Inc.
http://www.dictionary.com (accessed: May 3, 2018).
Incompatible - unable to exist together in harmony; contrary or
opposed in character; that cannot co-exist or be co-joined.
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Examiner's final conclusion that claim 20 would have been obvious to one
of ordinary skill in the art at the time of Appellants' invention.
K. Motivation
Appellants raise the following argument in contending that the
Examiner erred in "[a]ll [o]bviousness [r]ejections" (App. Br. 23):
For the sake of brevity and Board convenience, Appellant
has consolidated under this section its remarks concerning the
proffered motivations to combine for all of the obviousness
rejections.
In any case, Appellant submits that none of the proffered
motivations to combine are sufficient for at least two reasons.
App. Br. 23.
As to Appellants' above contention (and the arguments therewith),
Appellants do not address a particular ground of rejection as required by
37 C.F.R. § 4I.37(c)(l)(iv)("[e]ach ground of rejection contested by
appellant must be argued under a separate heading, and each heading shall
reasonably identify the ground of rejection being contested").
Essentially, Appellants present generalized arguments as a blanket
address of all § 103 rejections disconnected from addressing with a
particularized argument the specifics of any selected ground of rejection.
Then Appellants leave to this Board to construct the needed specifics and
particularized argument so that the Board can then address that
particularized argument. We decline to do so. The burden of identifying
Examiner error rests with Appellants. In re Jung, 637 F.3d 1356, 1365 (Fed.
Cir. 2011). For each ground of rejection, the Examiner provided reasons to
combine the references that are rational on their faces and supported by
evidence drawn from the record. Appellants make only general averments
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but do not present any particularized arguments as to why the Examiner's
reasons are irrational or otherwise lack a rational underpinning in the cited
prior art of this proceeding. In conclusion, the Examiner's explanation and
citations of the prior art outweigh Appellants' generalized arguments, and
we agree with the Examiner's reasoning and conclusions on the record
before us.
CONCLUSIONS
(1) The Examiner has not erred in rejecting claims 13, 19, and 33-37
as being anticipated under 35 U.S.C. § 102(a)(l).
(2) The Examiner has not erred in rejecting claims 1, 24, 25, and 31
as being unpatentable under 35 U.S.C. § 103(a).
(3) Appellants have established that the Examiner erred in rejecting
claims 2, 4, 20, and 38--41 as being unpatentable under 35 U.S.C. § 103(a).
(4) The Examiner has not shown claims 2--4, 16, 20, and 38--41 to be
unpatentable. 13
(5) Claims 1, 13, 19, 24, 25, 31, and 33-37 are not patentable.
DECISION
The Examiner's rejections of claims 1, 13, 19, 24, 25, 31, and 33-37
are affirmed.
The Examiner's rejections of claims 2, 4, 20, and 38--41 as being
unpatentable under 35 U.S.C. § 103(a) are reversed.
13 The Examiner has withdrawn the rejections of claims 3 and 16. Ans. 16.
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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-IN-PART
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