Nokia Technologies Oy

Patent Trials and Appeals Board

Jan 7, 2022

2021000141 (P.T.A.B. Jan. 7, 2022)

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. 15/980,338 05/15/2018 David NGUYEN 042933/514435 5422 10949 7590 01/07/2022 Nokia Corporation and Alston & Bird LLP c/o Alston & Bird LLP One South at The Plaza, 101 South Tryon Street Suite 4000 Charlotte, NC 28280-4000 EXAMINER LEE, NICHOLAS J ART UNIT PAPER NUMBER 2624 NOTIFICATION DATE DELIVERY MODE 01/07/2022 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): usptomail@alston.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte DAVID NGUYEN and AUDREY DESJARDINS Appeal 2021-000141 Application 15/980,338 Technology Center 2600 Before ERIC B. CHEN, MICHAEL J. STRAUSS, and JAMES B. ARPIN, Administrative Patent Judges. STRAUSS, Administrative Patent Judge. DECISION ON APPEAL1 STATEMENT OF THE CASE Pursuant to 35 U.S.C. § 134(a), Appellant2 appeals from the Examiner’s decision to reject claims 1-3, 5, 6, 9-12, 14, 15, and 18-20. See Final Act. 3. The Examiner objects to claims 4, 7, 8, 13, 16, and 17 as dependent from rejected base claims. We have jurisdiction under 35 U.S.C. § 6(b). We reverse. 1 We refer to the Specification, filed May 15, 2018 (“Spec.”); Final Office Action, mailed January 21, 2020 (“Final Act.”); Appeal Brief, filed June 25, 2020 (“Appeal Br.”); Examiner’s Answer, mailed August 3, 2020 (“Ans.”); and Reply Brief, filed October 5, 2020 (“Reply Br.”). 2 “Appellant” refers to “applicant” as defined in 37 C.F.R. § 1.42 (2012). Appellant identifies the real party in interest as Nokia Technologies Oy. Appeal Br. 2. Appeal 2021-000141 Application 15/980,338 2 CLAIMED SUBJECT MATTER Appellant describes the claims as directed to identifying media devices on a local area network by mapping a device name to a hardware address. Abstr., claim 1. Claim 1, reproduced below is illustrative: 1. An apparatus, comprising: a near eye display; at least one processor; and at least one memory including computer program code, the memory and the computer program code configured to, working with the processor, cause the apparatus to perform at least the following: entering of a passive viewing state of the apparatus; receipt of information indicative of a first input; determination of a first operation based, at least in part, on the passive viewing state and the first input; performance of the first operation; receipt of environmental sensor information indicating proximity of a user to the near eye display; determination that the environmental sensor information indicates that the apparatus is actively viewed by the user; entering of an active viewing state of the apparatus based, at least in part, on the determination that the environmental sensor information indicates that the apparatus is actively viewed by the user; receipt of information indicative of a second input, the second input being substantially the same as the first input; determination of a second operation based, at least in part, on the active viewing state and the second input, the second operation being different from the first operation; and performance of the second operation. Appeal Br. 18 (Claims App.). Appeal 2021-000141 Application 15/980,338 3 REFERENCES AND REJECTIONS The Examiner relies on the following references: The Examiner rejects: a. claims 1-3, 5, 6, 10-12, 14, 15, and 18-20 under 35 U.S.C. § 103 as obvious over the combined teachings of Cho and Sala (Final Act. 3-6); and b. claim 9 under 35 U.S.C. § 103 as obvious over the combined teachings of Cho, Sala, and Liu (id. at 6-7). STANDARD OF REVIEW We review the appealed rejections for error based upon the issues identified by Appellant, and in light of the contentions and evidence produced thereon. Ex parte Frye, 94 USPQ2d 1072, 1075 (BPAI 2010) (precedential). Arguments not made are forfeited.4 OPINION As noted above, the Examiner rejects claim 1 as obvious over the combined teachings of Cho and Sala. Final Act. 3-6. In particular, the Examiner finds Cho’s disclosure of a portable device responsive to a user’s 3 All citations are by reference to the first named inventor only. 4 See 37 C.F.R. § 41.37(c)(1)(iv) (2013) (“Except as provided for in §§ 41.41, 41.47 and 41.52, any arguments or authorities not included in the appeal brief will be refused consideration by the Board for purposes of the present appeal.”). Name3 Reference Date Liu US 2009/0007006 A1 Jan. 1, 2009 Cho US 2014/0313119 A1 Oct. 23, 2014 Sala US 2014/0361971 A1 Dec. 11, 2014 Appeal 2021-000141 Application 15/980,338 4 eye gaze to determine which of first and second display regions is being viewed by the user and process a user input. Accordingly, the Examiner finds Cho teaches or suggests all of the limitations of claim 1 except for the display being a near eye display. Id. at 3-4 (citing5 Cho ¶¶ 29, 34-35, 43, 44; Figs. 2, 3, 4, 6). The Examiner relies on Sala’s disclosure of a computing system having an eye tracking functionality and including near eye display 704 for teaching the missing element. Id. at 4 (citing Sala ¶ 34). According to the Examiner, “it would have been obvious . . . to have modified Cho with the teachings of Sala to include a near eye display, as suggested by Sala thereby using known types of display types in place of the display of Cho.” Id. at 4-5. Appellant contends the rejection is improper because the Examiner’s interpretation of the recited passive viewing state of the apparatus is unreasonably broad when viewed in light of the Specification. Appeal Br. 9-13. Appellant asserts the Examiner errs in determining “[p]assively viewing a device could be interpreted to mean altered viewing states of a user relative to a display device,” contending the Examiner’s interpretation is inconsistent with the use of the claim term in the Specification and drawings Id. at 8-9 (citing Final Act. 2). Rather than encompassing merely an altered view of a display as per Cho’s second display region with respect to a first display region of a device, Appellant contends, “the definition of the passive viewing state by the present application [is] a state in which, ‘a user may be focusing his attention on something other than the apparatus, 5 The Examiner adds the citation to Figure 2 and corrects citations to Figures 3 and 4 in the Final Office Action’s Response to Argument section. Ans. 7-8. Appeal 2021-000141 Application 15/980,338 5 ignoring the apparatus, viewing the apparatus with his peripheral vision, viewing the apparatus from a distance, and/or the like.’” Id. at 12-13 (citing Spec. ¶¶ 74, 83-84; Figs. 2E-2F). The Examiner responds, as follows: As described by the specification of the application in paragraph 0074, the passive viewing state is described as “a user focusing his attention on something other than the apparatus, ignoring the apparatus, viewing the apparatus with his peripheral vision, viewing the apparatus from a distance, and/or the like”. Given the description, the [S]pecification leaves interpretation to the passive viewing state to be any number of conditions based on a user relative to the device. Cho discloses a device that correlates similar inputs in response to determining a view state of the user. Referring to Fig. 2 and 3 of Cho, passively viewing a device could be interpreted to mean the user viewing the display device at a second display region 12 separate from the main display region 11 and actively viewing the device when looking directly at the main display region 11. Ans. 7 (emphasis added). Appellant replies, contending as follows: The [S]pecification does not leave “interpretation to the passive viewing state to be any number of conditions based on a user relative to the device.” Instead, the [S]pecification defines the passive viewing state to be “a user focusing his attention on something other than the apparatus, ignoring the apparatus, viewing the apparatus with his peripheral vision, viewing the apparatus from a distance, and/or the like.” Thus, the proper interpretation of the passive viewing state must be the four options set forth by the [S]pecification, namely, “a user focusing his attention on something other than the apparatus, ignoring the apparatus, viewing the apparatus with his peripheral vision, viewing the apparatus from a distance” as well as user behavior that is “like” the four options that are explicitly set forth. Reply Br. 2 (emphasis added; quoting Ans. 7). Appeal 2021-000141 Application 15/980,338 6 Appellant’s contention is persuasive of reversible Examiner error. Claim 1 recites, “receipt of environmental sensor information indicating proximity of a user to the near eye display[ and a] determination that the environmental sensor information indicates that the apparatus is actively viewed by the user.” The Specification describes: In at least one example embodiment, the environmental sensor information comprises proximity sensor information that indicates proximity of the user in relation to the display, and the determination that the environmental sensor information indicates that the apparatus is actively viewed by a user comprises determination that an eye of the user is proximate to the display based, at least in part, on the proximity sensor information. . . . In at least one example embodiment, the proximity sensor information indicating an object being within a threshold distance from the display indicates proximity of the user. . . . . . . . In at least one example embodiment, the environmental sensor information comprises proximity sensor information that indicates absence of the user proximate to the display, and the determination that the environmental sensor information indicates that the apparatus is not actively viewed by a user comprises determination that an eye of the user is distant to the display based, at least in part, on the proximity sensor information. . . . In at least one example embodiment, the proximity sensor information indicating an object being beyond a threshold distance from the display indicates absence of the user. Spec. ¶¶ 34, 35, 41, 42. The Specification further describes that “[d]uring active viewing of the apparatus, a user may be focusing his attention on the apparatus, interacting with the apparatus, and/or the like. For example, during an active viewing of the apparatus, a user may be actively reading Appeal 2021-000141 Application 15/980,338 7 information displayed on a display comprised by the apparatus.” Id. ¶ 72. Furthermore: In some circumstances, an apparatus may be positioned such that the apparatus may not be actively viewed by the user. For example, the apparatus may be placed on a desk, placed in the user’s pocket, worn on the user’s body, and/or the like. In circumstances such as these, a display comprised by an apparatus may be passively viewed by a user of the apparatus. Id. ¶ 74. Thus, consistent with the language of claim 1 and the Specification’s disclosure, a broad, but reasonable, interpretation of the active and passive viewing states is based on a relationship between the user and device, e.g., the position of the user with respect to the device, not merely the user’s viewing of a particular portion of the device, such as a portion of a display. Accordingly, we interpret the disputed passive viewing state to mean a state of the device such as wherein the device is positioned relative to the user, so that it cannot be readily viewed by the user. Thus, the Examiner’s determination that “a passive viewing state” encompasses Cho’s disclosure of viewing a second display area of a device, instead of a first display of the same device, constitutes reversible Examiner error. Because we agree with at least one of Appellant’s contentions of error, we do not reach the merits of Appellant’s other contentions. Accordingly, we do not sustain the rejection of independent claim 1, or the rejection of independent claims 10 and 18, which include language corresponding to the disputed limitation of claim 1. Nor do we sustain the rejections of dependent claims 2, 3, 5, 6, 9, 11, 12, 14, 15, 19, and 20, each of which stands with its respective base claim. Appeal 2021-000141 Application 15/980,338 8 DECISION We reverse the Examiner’s rejection of claims 1-3, 5, 6, 10-12, 14, 15, and 18-20 under 35 U.S.C. § 103 as obvious over the combined teachings of Cho and Sala. We also reverse the Examiner’s rejection of claim 9 under 35 U.S.C. § 103 as obvious over the combined teachings of Cho, Sala and Liu. CONCLUSION In summary: Claim(s) Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 1-3, 5, 6, 10-12, 14, 15, 18-20 103 Cho, Sala 1-3, 5, 6, 10-12, 14, 15, 18-20 9 103 Cho, Sala, Liu 9 Overall Outcome 1-3, 5, 6, 9- 12, 14, 15, 18-20 REVERSED