ELWHA LLC

Patent Trials and Appeals Board

Nov 1, 2021

2020002266 (P.T.A.B. Nov. 1, 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.
14/634,304 02/27/2015 Roderick A. Hyde 1213-002-001-000000/575.0 7701
76880 7590 11/01/2021
Fogg & Powers LLC - Intellectual Ventures
4600 W 77th Street
Suite 305
Minneapolis, MN 55435
EXAMINER
TANG, SON M
ART UNIT PAPER NUMBER
2685
NOTIFICATION DATE DELIVERY MODE
11/01/2021 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):
ISFDocketInbox@intven.com
docketing@fogglaw.com
eofficeaction@appcoll.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte RODERICK A. HYDE, MURIEL Y. ISHIKAWA,
JORDIN T. KARE, ERIC C. LEUTHARDT,
MARK A. MALAMUD, TONY S. PAN,
ELIZABETH A. SWEENEY, CLARENCE T. TEGREENE,
CHARLES WHITMER, LOWELL L. WOOD JR., and
VICTORIA Y. H. WOOD
________________

Appeal 2020-002266
Application 14/634,304
Technology Center 2600
____________

Before MARC S. HOFF, DAVID M. KOHUT, and
MATTHEW J. McNEILL, Administrative Patent Judges.

McNEILL, Administrative Patent Judge.

DECISION ON APPEAL

Appellant1 appeals under 35 U.S.C. § 134(a) from the Examiner’s
final rejection of claims 1‒5, 7, 16‒19, 40‒48, 51, 52, 56, 60‒62, 65‒68, 71,
and 76, which are all the claims pending in this application. Claims 6, 8‒15,

1 We use the word “Appellant” to refer to “applicant” as defined in
37 C.F.R. § 1.42 (2018). Appellant identifies the real party in interest as
Elwha LLC, which is an affiliate of The Invention Science Fund II, LLC.
Appeal Br. 3.
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20‒39, 49, 50, 53‒55, 57‒59, 63, 64, 69, 70, and 72‒75 were canceled.
Appeal Br. 31‒36 (Claims App’x). We have jurisdiction under 35 U.S.C.
§ 6(b).
We affirm in part.

STATEMENT OF THE CASE
Introduction
The claimed subject matter relates to determining that a portion of a
subject’s body is likely to collide with an object and providing the subject
with a warning of the potential collision. Spec. 3‒4. Claim 1 is illustrative of
the claimed subject matter and read as follows:
1. A device, comprising:
an image-capture sensor configured to be located on a
subject having a body portion and to capture image data
representative of an image of an object;
a determiner configured to determine, in response to the
captured image data, a trajectory of the subject and whether the
body portion will come within a threshold distance of the object
if the trajectory remains unchanged; and
a notifier configured to notify the subject, in response to
the determiner determining that the body portion will come
within the threshold distance of the object if the trajectory
remains unchanged, to change the trajectory to prevent the body
portion from contacting the object.
The Examiner’s Rejections
Claims 1‒5, 7, 16‒19, 40‒43, 45, 47, 52, 56, 60‒62, 65‒68, 71, and 76
stand rejected under 35 U.S.C. § 103 as unpatentable over Andoh (US
9,504,290 B2; Nov. 29, 2016), Lee (US 2014/0118498 A1; May 1, 2014),
and Yang (US 2012/0253234 A1; Oct. 4, 2012). Final Act. 2‒8.
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Claim 44 stands rejected under 35 U.S.C. § 103 as unpatentable over
Andoh, Lee, Yang, and Carbeck (US 2013/0185003 A1; July 18, 2013).
Final Act. 8.
Claim 46 stands rejected under 35 U.S.C. § 103 as unpatentable over
Andoh, Lee, Yang, and Nikolovski (US 8,830,059 B2; Sept. 9, 2014). Final
Act. 9.
Claims 48 and 51 stand rejected under 35 U.S.C. § 103 as
unpatentable over Andoh, Lee, Yang, and Gottlieb (US 7,893,844 B2; Feb.
22, 2011). Final Act. 9‒10.
ANALYSIS
Claims 1‒5, 7, 16‒19, 40‒47, 51, 52, 56, 60, 61, 65‒67, 71, and 76
Appellant argues the Examiner errs in rejecting claim 1 as
unpatentable over the combination of Andoh, Lee, and Yang because the
cited references do not teach or suggest a device comprising “a determiner
configured to determine, in response to the captured image data, a trajectory
of the subject and whether the body portion will come within a threshold
distance of the object if the trajectory remains unchanged.” See Appeal
Br. 13‒24; Reply Br. 2‒5. In particular, Appellant argues Andoh teaches
obtaining a shoe’s trajectory based on a signal from an acceleration sensor
and obtaining a distance from the shoe to an obstacle based on data from a
ranging sensor. Appeal Br. 18. Appellant argues Andoh does not teach that
the ranging sensor can replace the acceleration sensor. Id. Appellant argues
the acceleration sensor does not capture image data and, therefore, any
trajectory determination in Andoh is not made “in response to the captured
image data.” See id. at 19‒20.
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Appellant further argues Lee teaches a TOF camera that captures
three-dimensional images to determine the distance between a user and an
object determined to be dangerous. Appeal Br. 19. Appellant argues Lee
does not teach determining a trajectory using the TOF camera and an
ordinarily skilled artisan would not replace Andoh’s acceleration sensor with
Lee’s TOF camera. Id. at 19‒20. Appellant further argues the Examiner errs
in finding Yang teaches a “camera accelerometer” that determines velocity,
speed, and distance information. Appeal Br. 21.
Appellant has not persuaded us of Examiner error. The Examiner
finds, and we agree, Andoh teaches microprocessor 14 receives a signal
from acceleration sensor 13 and determines the trajectory of the shoe based
on this signal. Final Act. 3 (citing Andoh 7:4‒27). When ranging sensor 10
determines an obstacle is within a certain distance of the shoe,
microprocessor 14 calculates a collision time with the obstacle based on the
predicted trajectory. Id. Appellant’s argument that Andoh does not teach the
recited “determine” limitation is unpersuasive because Appellant assumes
that the determination must be based on data solely from ranging sensor 10.
However, claim 1 recites “a determiner configured to determine, in response
to the captured image data, a trajectory of the subject . . . .” Thus, claim 1
recites determining a trajectory of the subject in response to the captured
image data, but not necessarily based on the captured image data. Andoh
teaches determining whether a subject’s shoe (“body portion”) will come
within a threshold distance of an obstacle such as a step (“object”) based on
data from ranging sensor 10. Andoh 7:4‒10. Ranging sensor 10 may be, for
example, an infrared sensor. See id. at 4:41‒45. Thus, ranging sensor 10
teaches an “image-capture sensor configured . . . to capture image data.”
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Andoh further teaches, in response to the captured image data, determining a
trajectory of the subject based on data from acceleration sensor 13. Id. at
7:17‒20; see also id. at 8:4‒17. Although the trajectory determination may
not be based on captured image data from ranging sensor 10, such
determination is nonetheless in response to the captured image data. Thus,
we agree with the Examiner that Andoh teaches the disputed limitation.
For these reasons, we sustain the Examiner’s obviousness rejection of
claim 1. We also sustain the Examiner’s obviousness rejection of
independent claims 5 and 7, for which Appellant relies on the same
arguments. See Appeal Br. 25. We also sustain the Examiner’s obviousness
rejection of dependent claims 2‒4, 16‒19, 40‒47, 51, 52, 56, 60, 61, 65‒67,
71, and 76, which Appellant does not separately argue. See id. at 24‒30.
Claim 62
Claim 62 recites “[t]he device of claim 1 wherein the image-capture
sensor is configured to generate information representing a sound image of
sound emanated by the object.” Appellant argues the Examiner errs in
finding that the combination of Andoh, Lee, and Yang teaches or suggests
this limitation. See Appeal Br. 27‒28. In particular, Appellant argues Andoh
teaches an ultrasound sensor, but Andoh does not teach that the ultrasound
sensor “generate[s] information representing a sound image of sound
emanated by the object,” as recited in claim 62. Id. at 28.
Appellant has not persuaded us of Examiner error. The Examiner
finds, and we agree, Andoh teaches ranging sensor may be “a publicly
known sensor such as an ultrasonic sensor and an infrared sensor.” See Ans.
3; Andoh 4:43‒45. The Specification describes the image-capture sensor as
including various types of sensors, including thermal imagers and
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sonographic cameras. Spec. 48. Thus, although Andoh does not explicitly
teach a sonographic camera, which generates images of sound or other
vibrations, Andoh at least suggests such a sensor by teaching an ultrasound
sensor and that the sensor may be other publicly known sensors.
Accordingly, we are not persuaded of Examiner error. For these reasons, we
sustain the Examiner’s obviousness rejection of claim 62.
Claim 68
The Examiner rejects independent claim 68, determining that “[t]he
claimed method step[] limitations are similar to those in the device in claim
1 above, that the rejection would be in the same manner.” Final Act. 7. The
Examiner is correct that claim 68, an independent method claim, recites
limitations similar to the device of independent claim 1. However, claim 68
differs in one important respect, reciting, in relevant part, “wherein the
predicting includes predicting whether the body portion will come within the
threshold distance of the object in response to a rate at which a speed of the
body portion relative to the object is changing.”
Appellant argues the Examiner errs in rejecting claim 68 because the
Examiner does not provide any factual findings regarding this wherein
limitation, and in particular regarding the changing rate of speed. Appeal
Br. 28‒29. The Examiner did not respond to this argument in the Answer.
See Ans. 2‒4.
On this record, we are constrained to agree with Appellant that the
Examiner has not made sufficient factual findings regarding all of the
limitations recited in claim 68. Accordingly, we do not sustain the
obviousness rejection of independent claim 68.
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Claim 48
Claim 48 recites “[t]he method of claim 7 wherein the notifying the
subject includes notifying another subject.” Claim 7, from which claim 48
depends, recites, in relevant part, “in response to predicting that the body
portion will come within a threshold distance of the object if the trajectory
remains unaltered, notifying the subject to alter the trajectory to prevent the
object from colliding with body portion.”
The Examiner rejects claim 48 as unpatentable over Andoh, Lee,
Yang, and Gottlieb. Final Act. 9‒10. In particular, the Examiner finds
Gottlieb teaches a fall detection system that notifies a second subject (such
as a nurse, friend, or relative) when a first subject is in a “fallen” condition.
Id. (citing Gottlieb, Fig. 3, 3:13‒29).
Appellant argues the Examiner errs in rejecting claim 48 because the
Examiner does not provide any factual findings regarding how a notification
to a second subject that a first subject has already fallen is a notification “to
prevent the object from colliding with the body portion [of the first
subject].” Appeal Br. 29‒30. The Examiner did not respond to this argument
in the Answer. See Ans. 2‒4.
On this record, we are constrained to agree with Appellant that the
Examiner has not made sufficient factual findings regarding all of the
limitations recited in claim 48. In particular, we agree with Appellant that
Gottlieb’s notification relates to a past event, namely that a subject has had a
collision and has fallen. The Examiner makes no findings regarding how an
ordinarily skilled artisan would combine this notification with the
notifications taught by Andoh, Lee, and Yang to achieve the recited
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limitations. Accordingly, we do not sustain the obviousness rejection of
claim 48.
DECISION SUMMARY
In summary:
Claim(s)
Rejected
35
U.S.C. §
Reference(s)/Basis Affirmed Reversed
1‒5, 7, 16‒
19, 40‒43,
45, 47, 52,
56, 60‒62,
65‒68, 71, 76
103 Andoh, Lee, Yang 1‒5, 7, 16‒
19, 40‒43,
45, 47, 52,
56, 60‒62,
65‒67, 71, 76
68
44 103 Andoh, Lee, Yang,
Carbeck
44
46 103 Andoh, Lee, Yang,
Nikolovski
46
48, 51 103 Andoh, Lee, Yang,
Gottlieb
51 48
Overall
Outcome
1‒5, 7, 16‒
19, 40‒47,
51, 52, 56,
60‒62, 65‒
67, 71, 76
48, 68

TIME PERIOD FOR 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).

AFFIRMED IN PART