Google LLC

Patent Trials and Appeals BoardMay 20, 2021

2020001568 (P.T.A.B. May. 20, 2021)

UNITED STATES PATENT AND TRADEMARK OFFICE 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 APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO. 14/504,121 10/01/2014 Ivan Poupyrev 2230500US 9462 149118 7590 05/20/2021 Colby Nipper / Google 291 East Shore Drive Suite 200 Eagle, ID 83616 EXAMINER NGUYEN, THU N ART UNIT PAPER NUMBER 2154 NOTIFICATION DATE DELIVERY MODE 05/20/2021 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): docket@colbynipper.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte IVAN POUPYREV and GAETANO ROBERTO AIELLO Appeal 2020-001568 Application 14/504,121 Technology Center 2100 Before JOSEPH L. DIXON, LARRY J. HUME, and SCOTT B. HOWARD, Administrative Patent Judges. DIXON, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the Examiner’s decision to reject claims 1, 3–7, 9–12, and 17. See Final Act. 1. We have jurisdiction under 35 U.S.C. § 6(b). We REVERSE. 1 We use the term “Appellant” to refer to “applicant” as defined in 37 C.F.R. § 1.42 (2018). Appellant identifies the real party in interest as Google LLC. Appeal Br. 3. Appeal 2020-001568 Application 14/504,121 2 CLAIMED SUBJECT MATTER The claims are directed to a radar recognition-aided search. Claim 1, reproduced below, is illustrative of the claimed subject matter: 1. A computer-implemented method, the method implemented on a device and comprising: receiving, by the device, a search request having a search query; recognizing, by the device, an in-the-air gesture that has multiple potential meanings and is received through a radar- based recognition system, the recognizing based on reflections of a radar field received by an antenna of the radar-based recognition system; determining, by the device, a meaning about the in-the-air gesture that is relevant to the search request from the multiple potential meanings, the determining based on a comparison of the multiple potential meanings associated with the in-the-air gesture in combination with the search request; causing, by the device, a search to be performed, the search based on the received search query and refined using the determined meaning of the in-the-air gesture; and providing, by the device, search results responsive to the search request. REFERENCES The prior art relied upon by the Examiner is: Name Reference Date Matas (“Matas396”) US 2008/0168396 A1 July 10, 2008 Matas (“Matas419”) US 2008/0320419 A1 Dec. 25, 2008 Hinckley US 2009/0058820 A1 Mar. 5, 2009 Khosravy US 2009/0319181 A1 Dec. 24, 2009 Heck US 2012/0254810 A1 Oct. 4, 2012 Li US 2013/0332438 A1 Dec. 12, 2013 Marantz US 2014/0095480 A1 Apr. 3, 2014 Brumback US 2014/0135631 A1 May 15, 2014 Sprenger US 2015/0277569 A1 Oct. 1, 2015 Appeal 2020-001568 Application 14/504,121 3 REJECTIONS2,3 Claims 1, 3, 4, 12, and 17 stand rejected under 35 U.S.C. § 103 as being unpatentable over Heck, Li, and Sprenger. Final Act. 8–12. Claims 5 and 7 stand rejected under 35 U.S.C. § 103 as being unpatentable over Heck, Li, Sprenger, and Matas419. Final Act. 13. Claim 6 stands rejected under 35 U.S.C. § 103 as being unpatentable over Heck, Li, Sprenger, and Matas396. Final Act. 16. Claims 9–11 stand rejected under 35 U.S.C. § 103 as being unpatentable over Heck, Li, Sprenger, and Marantz. Final Act. 16–17. OPINION 35 U.S.C. § 103 – Independent Claims 1 and 12 We review the appealed rejection for error based upon the issues Appellant identifies, and in light of the arguments and evidence produced thereon. Ex parte Frye, 94 USPQ2d 1072, 1075 (BPAI 2010) (precedential) (“[I]t has long been the Board’s practice to require an applicant to identify 2 The After Final Response, filed Oct. 1, 2018, was entered by the Examiner. Advisory Act. 1 (Box 7(b)). This Response cancelled claims 18 and 21–28, and further added new claims 29–37. After Final Resp. 2–8. The Examiner did not identify any ground of rejection or further address these new claims in the Advisory Action or Examiner’s Answer. Therefore, claims 29–37 are not before us on appeal. 3 Claims 1, 3–7, 9–12, 17, 18, and 21–28 were rejected under 35 U.S.C. § 101 because the claimed invention is directed to a judicial exception (i.e., a law of nature, a natural phenomenon, or an abstract idea) without significantly more. Final Act. 2. The rejection of these claims stand withdrawn by the Examiner. Ans. 6. Claim 1 was rejected under 35 U.S.C. § 112(b). Final Act. 5. This rejection stands withdrawn by the Examiner. Ans. 6. Appeal 2020-001568 Application 14/504,121 4 the alleged error in the examiner’s rejections.”) (cited with approval in In re Jung, 637 F.3d 1356, 1365 (Fed. Cir. 2011)). In rejecting claims under 35 U.S.C. § 103(a), the examiner bears the initial burden of establishing a prima facie case of obviousness. In re Oetiker, 977 F.2d 1443, 1445 (Fed. Cir. 1992); see also In re Piasecki, 745 F.2d 1468, 1472 (Fed. Cir. 1984). Only if this initial burden is met does the burden of coming forward with evidence or argument shift to the appellant. See Oetiker, 977 F.2d at 1445; Piasecki, 745 F.2d at 1472. Obviousness is then determined on the basis of the evidence as a whole and the relative persuasiveness of the arguments. Id. Upon review of the evidence and each of the respective positions set forth in the record, we find that the preponderance of evidence supports Appellant’s position in the record. Accordingly, we reverse the Examiner’s rejections on appeal essentially for the reasons set forth in the record by Appellant, with the following emphasis. Appellant contends the Final Action fails to establish a prima facie case of obviousness that Heck in view of Li and Sprenger teaches each and every feature of independent claims 1 and 12. Appeal Br. 16, 19, 26; Reply Br. 2–3. Regarding claim 1, Appellant emphasizes the claim limitation “determining. . . a meaning about the in-the-air gesture. . . based on a comparison of the multiple potential meanings associated with the in-the-air gesture.” Appeal Br. 17; Reply Br. 2–3. Regarding claim 12, Appellant emphasizes the claim limitation “determining. . . information about the second in-the-air gesture. . . based on a comparison of potential meanings associated with the second in-the-air gesture.” 4 Appeal Br. 25–26. To teach 4 While Appellant makes other arguments responsive to the Section 103 rejections, these arguments need not be addressed at this time because the Appeal 2020-001568 Application 14/504,121 5 these limitations, the Examiner points to Heck paragraphs 16–17 and 21 coupled with the explanation of “determining user action.” Final Act. 9, 11. In support, the Examiner finds that the pointing action of Heck paragraphs 16–17 is capable of selectively identifying one actor from a group of three. Final Act. 7; Advisory Act. 3. The Examiner finds that the combination of a speech query and pointing gesture in Heck paragraph 21 shows “the determining based on a comparison of the multiple potential meanings associated with the in-the-air gesture in combination with the search request.” Final Act. 7. Appellant argues the Final Action does not show multiple “potential meanings” of the Heck pointing gesture. Appeal Br. 18. Heck teaches “a pointing gesture of user 105 that may be operative to indicate a subset of the visual display.” Heck ¶ 16. In other words, “the gesture comprises a pointing gesture operative to select a subset of the visual display.” Heck ¶ 21. This pointing gesture in Heck has one meaning, i.e., picking a subset. Appeal Br. 18. Appellant correctly contends that the pointing gesture of Heck paragraph 16 is only “a gesture that has a single meaning that is ‘operative to indicate a subset of the visual display’” and does not have “multiple potential meanings.” Appeal Br. 18 (emphasis omitted). Although the Final Action only shows one meaning of the Heck pointing gesture, it fails to establish multiple “potential meanings.” The Final Action also correspondingly fails to adequately find “comparison” of multiple “potential meanings” as in claims 1 and 12. findings pertaining to this particular language of claims 1 and 12 is determinative of the outcome. Appeal 2020-001568 Application 14/504,121 6 The Examiner makes additional findings insufficient to establish obviousness for claims 1 and 12. The Examiner finds, since the Sprenger gesture in paragraph 18 is compared to known gestures in a gesture library, the gesture has more than one known meaning. Advisory Act. 3. In the context of Sprenger paragraph 18, the Examiner finds “[w]hen the in-the-air gesture detected and recognized then the system will compare the gesture with one or more known gesture (library) which means it has multiple potential meaning.” Ans. 4, 6. Paragraph 18 of Sprenger teaches a detected gesture is recognized through comparison with a gesture library, but it does not teach that a recognized gesture is again compared with a gesture library again after recognition. Sprenger ¶ 18; Appeal Br. 18. The gesture library of Sprenger paragraph 18 is used to recognize a gesture, and does not determine gesture meaning. Appeal Br. 18–19. Sprenger also does not teach “comparison” of multiple “potential meanings” associated with this one “gesture.” Appeal Br. 19. While each gesture in the Sprenger library has a meaning, Sprenger fails to teach “two or more meanings for the same in-the-air gesture.” Reply Br. 3. The Appellant correctly contends that, even though the Examiner shows a library of gestures in Sprenger, this does not establish a particular in-the-air gesture that has multiple potential meanings in context of the claimed comparison. Reply Br. 3. Succinctly put, Sprenger teaches comparison of gestures and not comparison of meanings. This comparison of gestures in Sprenger is to recognize a gesture and not to determine the gesture’s meaning. The Examiner has not made adequate findings of multiple “potential meanings” associated with one gesture and related “comparison” as present in claims 1 and 12. Appeal 2020-001568 Application 14/504,121 7 Additionally, the Examiner has not identified how any of the additional prior art references remedy the noted deficiency. As a result, we find that the Examiner has not made sufficient factual findings concerning the express claim language to support the ultimate conclusion of obviousness of independent claims 1 and 12. 35 U.S.C. § 103 – Dependent Claims 3–7, 9–11 and 17 With respect to the obviousness rejections of dependent claims 3–7, 9–11 and 17, the Examiner relies upon the Heck, Li, Sprenger, Matas419, Matas396, and Marantz references, but the Examiner does not identify how the cited portions in these references remedy the noted deficiency above. As a result, we do not sustain the Examiner’s obviousness rejections of dependent claims 3–7, 9–11, and 17 for the same reasons. CONCLUSION We REVERSE the Examiner’s decision rejecting claims 1, 3–7, 9–12, and 17 under 35 U.S.C. § 103. Appeal 2020-001568 Application 14/504,121 8 DECISION SUMMARY Claim(s) Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 1, 3, 4, 12, 17 103 Heck, Li, Sprenger 1, 3, 4, 12, 17 5, 7 103 Heck, Li, Sprenger, Matas419 5, 7 6 103 Heck, Li, Sprenger, Matas396 6 9–11 103 Heck, Li, Sprenger, Marantz 9–11 Overall Outcome 1, 3–7, 9– 12, 17 REVERSED