Opdig, Inc.

Patent Trials and Appeals BoardSep 20, 2021

2020002176 (P.T.A.B. Sep. 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. 14/212,678 03/14/2014 Eric Jeffrey Keller 00002-US 3636 115713 7590 09/20/2021 Eric Jeffrey Keller 35 Merrymount Road Unit 8 Quincy, MA 02169 EXAMINER PARKER, JEFFREY ALAN ART UNIT PAPER NUMBER 2625 MAIL DATE DELIVERY MODE 09/20/2021 PAPER 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. PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ________________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ________________ Ex parte ERIC JEFFREY KELLER, VINH VI LAM, and FRANK PETER LAMBRECHT ________________ Appeal 2020-002176 Application 14/212,678 Technology Center 2600 ________________ Before JEAN R. HOMERE, JASON V. MORGAN, and MICHAEL J. ENGLE, Administrative Patent Judges. MORGAN, Administrative Patent Judge. DECISION ON REQUEST FOR REHEARING Appellant1 requests rehearing of the Decision entered July 1, 2021. In the Decision, we affirmed the Examiner’s rejection of claims 1, 2, 5, 7–19, 22, and 24–40. Dec. 7. Appellant files this request pursuant to 37 C.F.R. § 41.52. Req. Reh’g 2. We have considered Appellant’s arguments but, as detailed below, we find them unpersuasive. Therefore, Appellant’s Request for Rehearing is DENIED. 1 “Appellant” refers to “applicant” as defined in 37 C.F.R. § 1.42. Appellant identifies the real party in interest as Opdig, Inc. Appeal Br. 2. Appeal 2020-002176 Application 14/212,678 2 DISCUSSION Appellant argues that we erred by misapprehending or overlooking “the claim limitation ‘fitting a plane to the path,’” as recited in representative claim 1. Req. Reh’g 2. Appellant argues that “Bress does not teach or suggest ‘fitting a plane to the path’” (id.) and that the Examiner erroneously relied exclusively on Rafii to teach or suggest this recitation (id. at 3). In particular, Appellant argues claim 1 requires more than a “determination of an orientation of a working surface based on a gesture.” Id. Rather, Appellant contends claim 1 requires “that the orientation of the working surface be determined in a manner that includes ‘fitting a plane to the path.’” Id. Appellant’s arguments are untimely and, therefore, are not persuasive of error in the Decision. 37 C.F.R. § 41.52(a)(1) (“Arguments not raised . . . pursuant to §§ 41.37, 41.41, or 41.47 are not permitted in the request for rehearing”). In the Appeal Brief, Appellant argued a 64-word “determining” recitation that, at the end, included the recitation of “fitting a plane to the path.” Appeal Br. 6. Specifically, Appellant submitted that: Claim 1 recites “determining an orientation of a working surface based at least in part on a portion of the first set of acceleration measurements corresponding to the working surface definition gesture, in which determining the orientation of the working surface comprises determining a path through three dimensional space traversed by the first accelerometer during a working surface definition gesture, and fitting a plane to the path.” Id. Appellant also made conclusory statements that Rafii fails to teach or suggest this recitation, among others. E.g., Appeal Br. 7 (“Rafii makes no mention of determining a path through three dimensional space traversed by an accelerometer (or any other object) and fitting a plane to the path and is Appeal 2020-002176 Application 14/212,678 3 not understood to teach or disclose these concepts”). But Appellant presented no argument directed specifically to whether Rafii, alone or in combination with Bress, teaches or suggests “fitting a plane to the path.” In the Reply Brief, for the first time, Appellant submitted that Rafii does not describe determining any aspect of the interaction subzone 60 based on fitting a plane to a path through a three dimensional space traversed by any object – instead determining a position of the interaction subzone 60 based on a single point in space (e.g., (x, y, z) vs. (x′′, y′′, z′′)). Reply Br. 4 (citing Rafii 16:64–17:1). But this contention, which Appellant had not shown was responsive to an argument raised by the Examiner, was untimely. 37 C.F.R. § 41.41(b)(2) (“Any argument raised in the reply brief which was not raised in the appeal brief, or is not responsive to an argument raised in the examiner’s answer, including any designated new ground of rejection, will not be considered by the Board for purposes of the present appeal, unless good cause is shown”). Appellant contends we erroneously focused “on the combination of the accelerometer teachings of Bress with the camera-based gesture detection of Rafii.” Req. Reh’g 2. Appellant, however, specifically presented contentions regarding the “determining” recitation as not being taught or suggested because “Rafii teaches recognition of some hand gestures based on optical data from cameras” or because “Rafii describes changing or defining a position, not an orientation, of a plane.” Appeal Br. 7. For example, Appellant argued: Claim 1 recites “determining an orientation of a working surface based at least in part on a portion of the first set of acceleration measurements corresponding to the working surface definition gesture, in which determining the orientation of the working surface comprises determining a path through three Appeal 2020-002176 Application 14/212,678 4 dimensional space traversed by the first accelerometer during a working surface definition gesture, and fitting a plane to the path; .... ” (Emphasis added.) Bress and Rafii individually and in combination are not understood to disclose or suggest these limitations of claim 1. The applicant agrees with the Examiner that “Bress does not explicitly teach detecting a working surface definition gesture; ... ” and the rest of these limitations (See Final Office Action at p. 4.) The office action goes on to [allege] that these limitations are disclosed by Rafii. (See Final Office Action at pp. 4–5.) However, Rafii is also not understood to disclose or suggest these limitations of claim 1. Rather, Rafii teaches recognition of some hand gestures based on optical data from cameras, e.g., cameras 74-L and 74-R of FIG. 3 (see, e.g., Rafii, at column 19, lines 6-37. See also Fig. 3, elements 74-L and 74-R.) Rafii describes, “[i]n FIG. 3, note that the recta[n]gle-plane 62′′ is dynamically relocatable within interaction subzone 60, and can be at the position shown for plane 62, or perhaps 62′, or 62′′, among an infinite number of other positions.” See Rafii at col. 19, lines 45–48 (Emphasis added). Thus, Rafii describes changing or defining a position, not an orientation, of a plane. A position does not determine an orientation of the plane 62 of [Rafii] or any object that could be said to constitute a “working surface”. Rafii makes no mention of determining a path through three dimensional space traversed by an accelerometer (or any other object) and fitting a plane to the path and is not understood to teach or disclose these concepts. For example, Rafii is not understood to teach or disclose “determining a path through three dimensional space traversed by the first accelerometer during a working surface definition gesture, and fitting a plane to the path,” as required by claim 1. Id. at 6–7 (ellipses in original). Appellant’s conclusory assertion that “Rafii makes no mention of determining a path through three dimensional space traversed by an accelerometer” (emphasis added) only further reinforced Appellant’s position that Rafii’s use of optical data rather than accelerometer data was what was purportedly dispositive in distinguishing claim 1 from the prior art. Id. at 7. Appeal 2020-002176 Application 14/212,678 5 We did not agree with this position, which attacked Rafii individually rather than showing error in the Examiner’s reliance on the combined teachings and suggestions of Bress and Rafii. Dec. 5–6. We also did not find Appellant’s alleged distinction between plane position and orientation persuasive given the particular teachings of Rafii. Id. at 5. Therefore, we did not find Appellant’s arguments persuasive. Dec. 6. Appellant does not show error in analysis based on the timely arguments presented with respect to the “fitting a plane to a path” recitation. Rather, Appellant repeats the contention that “Rafii describes adjusting the location and, by extension of the argument supporting the rejections, the orientation of the interaction subzone based on a three-dimensional point (x, y, z) – not a path – associated with a gesture.” Req. Reh’g 3 (citing Reply Br. 2–4; Rafii 16:61–17:24, 18:30–40, Fig. 3). But as discussed above, Appellant’s contention in the Reply Brief regarding “fitting a plane to a path” was untimely. For these reasons, Appellant does not show that we misapprehended or overlooked any arguments timely raised during appeal. Thus, we decline to make any modifications to the Decision. Appellant’s Request for Rehearing is DENIED. Appeal 2020-002176 Application 14/212,678 6 SUMMARY Outcome of Decision on Request for Rehearing: Claims Rejected 35 U.S.C. § References Denied Granted 1, 2, 5, 12, 17, 18, 19, 22, 29, 34–36 103(a) Bress, Rafii 1, 2, 5, 12, 17, 18, 19, 22, 29, 34–36 7, 24 103(a) Bress, Rafii, Hernandez- Rebollar 7, 24 8–10, 25–27, 37 103(a) Bress, Rafii, Paradiso 8–10, 25–27, 37 11, 28, 38–40 103(a) Bress, Rafii, Seki 11, 28, 38–40 13, 15, 16, 30, 32, 33 103(a) Bress, Rafii, Paradiso, Seki 13, 15, 16, 30, 32, 33 14, 31 103(a) Bress, Rafii, Jeng 14, 31 Overall Outcome 1, 2, 5, 7–19, 22, 24–40 Appeal 2020-002176 Application 14/212,678 7 Final Outcome of Appeal after Rehearing: Claims Rejected 35 U.S.C. § References Affirmed Reversed 1, 2, 5, 12, 17, 18, 19, 22, 29, 34–36 103(a) Bress, Rafii 1, 2, 5, 12, 17, 18, 19, 22, 29, 34–36 7, 24 103(a) Bress, Rafii, Hernandez- Rebollar 7, 24 8–10, 25–27, 37 103(a) Bress, Rafii, Paradiso 8–10, 25–27, 37 11, 28, 38–40 103(a) Bress, Rafii, Seki 11, 28, 38–40 13, 15, 16, 30, 32, 33 103(a) Bress, Rafii, Paradiso, Seki 13, 15, 16, 30, 32, 33 14, 31 103(a) Bress, Rafii, Jeng 14, 31 Overall Outcome 1, 2, 5, 7–19, 22, 24–40 DENIED