KOETZ, Hendrik

Patent Trials and Appeals BoardDec 12, 2019

14647481 - (D) (P.T.A.B. Dec. 12, 2019)

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. 14/647,481 05/27/2015 Hendrik KOETZ KOETZ - 4 PCT 7974 25889 7590 12/12/2019 COLLARD & ROE, P.C. 1077 NORTHERN BOULEVARD ROSLYN, NY 11576 EXAMINER SOOHOO, TONY GLEN ART UNIT PAPER NUMBER 1774 NOTIFICATION DATE DELIVERY MODE 12/12/2019 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): uspto@collardroe.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte HENDRIK KOETZ Appeal 2019-003608 Application 14/647,481 Technology Center 1700 Before KAREN M. HASTINGS, MICHELLE N. ANKENBRAND, and LILAN REN, Administrative Patent Judges. REN, 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, 3–8, 10, and 11. Final Act. 2. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. 1 We use the word “Appellant” to refer to “Applicant” as defined in 37 C.F.R. § 1.42(a). Appellant identifies the real party in interest as “VORWERK & CO. INTERHOLDING GMBH, Wuppertal, Germany.” Appeal Br. 1. Appeal 2019-003608 Application 14/647,481 2 CLAIMED SUBJECT MATTER The claims are directed to “an electrically operated food processor with a mixing bowl and a mixer in the mixing bowl.” Spec. 1. Claim 1, reproduced below, is illustrative of the claimed subject matter: 1. An electrically operated food processor comprising: (a) a mixing bowl; (b) a mixer in the mixing bowl; (c) a camera for recognizing a gesture comprising a movement of at least a portion of a body of a user of the food processor; said camera having a detection area, and that the detection area of the camera is not directed on the food processor but to an environment of the food processor where the user may stand and gesture; (d) a processor comprising gesture recognition software; and (e) a memory comprising a gesture data bank for storing gestures; wherein recognition of a first gesture stored in the gesture data bank causes the food processor to carry out a function, wherein the function comprises food processor activation that provides an operability via mechanical interfaces, via speech control and via gestures, alone or in combination with each other, wherein the food processor further comprises a heater for heating the mixing bowl and an electric motor for running the mixer, wherein the food processor is arranged to carry out at least one of the heating and the running of the mixer only when a speed of the mixer, a temperature of the mixing bowl, and a duration of at least one of the running of the mixer at the speed and the heating of the mixing bowl at the temperature is provided or is accepted by operation of at least one of mechanical interfaces, speech control and gestures. Claims Appendix (Appeal Br. 15–16). Appeal 2019-003608 Application 14/647,481 3 REFERENCES The prior art references relied upon by the Examiner are: Peters Beesley US 6,243,683 B1 US 7,270,156 B2 June 5, 2001 Sept. 18, 2007 Wulf US 2002/0176320 A1 Nov. 28, 2002 Hans W. Guesgen & Darren Kessell, Gestural Control of Household Appliances for the Physically Impaired, Proceedings of the Twenty-Fifth International Florida Artificial Intelligence Research Society Conference, 2012. Jun-Hyeong Do et al., Advanced Soft Remote Control System Using Gesture, Advances in Artificial Intelligence (2006). REJECTION The Examiner rejects claims 1, 3–8, 10, and 11 under 35 U.S.C. § 103 over Wulf, Peters, Guesgen, Do, and Beesley. Final Act. 2. OPINION We review the appealed rejections for error based upon the issues Appellant identifies, and in light of the arguments and evidence produced thereon. Cf. 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) (“[I]t has long been the Board’s practice to require an applicant to identify the alleged error in the examiner’s rejections.”)). After having considered the evidence presented in this Appeal and each of Appellant’s contentions, we are not persuaded that Appellant has identified reversible error, and we affirm the Examiner’s § 103 rejection for the reasons expressed in the Final Office Action and the Answer. We add the following primarily for emphasis. Appeal 2019-003608 Application 14/647,481 4 Claim 1 The Examiner rejects claim 1 based on the combined teachings of the cited references. Final Act. 2–8 (providing a detailed obviousness analysis and citing various prior art components). Appellant does not contest that the recited structural components (a mixing bowl, a mixer, a camera, a processor, and a memory) were known, but argues that “the wording ‘wherein the food processor is arranged to carry out . . .’ is a structional [sic] feature of the kitchen appliance.” Appeal Br. 9. Appellant does not explain what “structional” means, nor does Appellant specify any structure that is absent in the Examiner’s obviousness analysis. Id. Appellant instead argues that the recited “food processor may have a controller that is able to conduct an assessment . . . .” Id. To the extent that the recited processor encompasses a “controller”, Appellant’s argument is not persuasive because Appellant fails to dispute the Examiner’s finding that Wulf teaches a food processer comprising a processor (and a memory) with gesture recognition and other functionalities. Compare id., with Final Act. 2–3. Moreover, we note that “apparatus claims cover what a device is, not what a device does.” Hewlett- Packard Co. v. Bausch & Lomb Inc., 909 F.2d 1464, 1468 (Fed. Cir. 1990). Appellant’s argument does not structurally distinguish the prior art, and does not identify reversible error in the Examiner’s findings here. Appellant next argues that the combined prior art teachings do not teach or suggest “recognition of a first gesture . . . causes the food processor to carry out a function, wherein the function comprises food processor activation that provides an operability via mechanical interfaces, via speech control and via gestures, alone or in combination with each other” as recited in claim 1. Appeal Br. 8–9. Appellant argues that the Examiner reversibly Appeal 2019-003608 Application 14/647,481 5 erred because the claim language “means, that the recognition of a gesture is a premise for each of the operations by mechanical interfaces, speech control and gestures.” Id. at 9. As the Examiner points out, Appellant’s argument is not commensurate in scope with the claim language. The claim term “alone or in combination” does not require the food processor to carry out each of the recited functions. Ans. 11–12. Appellant does not disagree with the Examiner’s interpretation of the claim term. Reply Br. 2–5. Accordingly, we are not persuaded that the Examiner reversibly erred here. Appellant next argues that the combined prior art does not teach or suggest a food processor that “is arranged to carry out at least one of the heating and the running of the mixer only when a speed of the mixer, a temperature of the mixing bowl, and a duration of at least one of the running of the mixer at the speed and the heating of the mixing bowl at the temperature is provided or is accepted by operation of at least one of mechanical interfaces, speech control and gestures.” Appeal Br. 11. The argument is likewise unpersuasive because it is incommensurate in scope with the claim language. For example, Appellant argues that the claim requires a scenario in which “both operation by mechanical interfaces and operation by speech recognition are not possible, if the food processor has not been activated by a defined gesture of the operator before.” Id. Appellant, however, does not explain why claim 1 is limited to this particular embodiment. Id. Appellant argues that Peters “fails to disclose that gestures are used for carrying out an operability of the disclosed system other than activation or supplementation of the speech recognition system” without structurally distinguishing Peters or explaining why claim 1 requires such a feature. Id. We further note that Appeal 2019-003608 Application 14/647,481 6 the Examiner finds Peters teaches using a validation gesture to check whether a gesture is inadvertent or intended for the operation of the food processor. Ans. 11. Appellant does not dispute this finding. Reply Br. 2–5. Appellant also argues that the claim language requires a “correlation between a compulsory choice of a mixer speed, heating temperature or duration and the operation of the heating and the mixer respectively.” Appeal Br. 9. Appellant likewise does not sufficiently explain why the claim language is so narrow that to require such “a compulsory choice,” nor does Appellant structurally distinguish the prior art. See id. These arguments based on unrecited features cannot impart patentability. In re Hiniker Co., 150 F.3d 1362, 1369 (Fed. Cir. 1998). In any event, Appellant does not address the Examiner’s findings with regard to the combined teachings of Wulf, Peters, Guesgen, and Do, on which the Examiner bases the rejection of the claim limitation at issue. See Appeal Br. 9–11. Appellant instead makes arguments based on Beesley — which is a reference the Examiner cites as teaching a heater. Compare Appeal Br. 9–11 (arguing that Beesley “is silent about the inventive correlation . . .”), with Final Act. 5–8 (citing Beesley for a food mixer with a heater and citing Wulf, Peters, Guesgen, and Do for the remaining structural components of the claim, as well as the functionalities and the advantages thereof). Appellant’s argument is, therefore, unpersuasive because it does not address the entirety of the Examiner’s fact findings in support of the limitation at issue. Appellant next argues that both Guesgen and Do are inoperable (i.e., do not contain enabling disclosure) without providing supporting evidence. Appeal Br. 10. “[A] prior art printed publication cited by an examiner is Appeal 2019-003608 Application 14/647,481 7 presumptively enabling barring any showing to the contrary by a patent applicant.” In re Antor Media Corp., 689 F.3d 1282, 1288 (Fed. Cir. 2012). Appellant’s attorney argument, without supporting evidence rebutting the presumption, is not persuasive. Johnston v. IVAC Corp., 885 F.2d 1574, 1581 (Fed. Cir. 1989) (“Attorneys’ argument is no substitute for evidence.”). Appellant also argues that one of ordinary skill in the art would not be able to make and use the inventions of Guesgen and Do without undue experimentation. Appeal Br. 10. This argument similarly lacks evidentiary support and analysis. Such an unelaborated attorney argument is not persuasive of reversible error. Johnston, 885 F.2d at 1581. Accordingly, we affirm the rejection of claim 1. Appellant does not argue claims 3–7, 10, and 11 separately. Appeal Br. 7–14. Thus, we also affirm the rejection of claims 3–7, 10, and 11. See 37 C.F.R. § 41.37(c)(1)(iv). Claim 8 Claim 8 depends from claim 1 and additionally recites “a display for displaying values . . . .” Appellant’s argument with regard to claim 8 does not address the recited display. Appeal Br. 12. Appellant instead again argues that the combined prior art does not teach or suggest a food processor “arranged to carry out at least one of the heating and the running of the mixer only when a speed of the mixer, a temperature of the mixing bowl, and a duration of at least one of the running of the mixer at the speed and the heating of the mixing bowl at the temperature is provided or is accepted by operation of at least one of mechanical interfaces, speech control and gestures,” as recited in claim 1. Appeal 2019-003608 Application 14/647,481 8 More specifically, Appellant argues that this limitation is a “security function” in claim 8. Id. The entirety of Appellant’s argument is directed to certain advantages of the recited apparatus, which are not recited in the claim. For example, Appellant argues that the claim limitation “prevents the operation of the food processor if a user of the food processor or another person next to the food processor gestures accidentally according to a defined gesture that would otherwise lead to a defined operation of the food processor.” Id. Appellant’s argument does not address the prior art teachings at all (see id.) and, therefore, Appellant fails to identify reversible error in the Examiner’s findings. CONCLUSION The Examiner’s rejection is affirmed. DECISION SUMMARY In summary: Claims Rejected 35 U.S.C. § Basis Affirmed Reversed 1, 3–8, 10, 11 103 Wulf, Peters, Guesgen, Do, Beesely 1, 3–8, 10, 11 Overall Outcome 1, 3–8, 10, 11 FINALITY AND RESPONSE No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R. § 1.136(a)(1)(iv). Appeal 2019-003608 Application 14/647,481 9 AFFIRMED