14814566 (P.T.A.B. Jan. 31, 2018)

Ex Parte Alameh et al

Patent Trial and Appeal BoardJan 31, 2018

14814566 (P.T.A.B. Jan. 31, 2018)

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. 14/814,566 07/31/2015 Rachid M Alameh MM01303 1007 138908 7590 02/01/2018 Burrus Intellectual Property Law Group (MM Files) 222 12th Street NE Suite 1803 Atlanta, GA 30309 EXAMINER KHAN, OMER S ART UNIT PAPER NUMBER 2683 MAIL DATE DELIVERY MODE 02/01/2018 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 RACHID M. ALAMEH and PAUL STEUER ____________ Appeal 2017-009195 Application 14/814,566 Technology Center 2600 ____________ Before TERRENCE W. McMILLIN, KARA L. SZPONDOWSKI, and SCOTT B. HOWARD, Administrative Patent Judges. SZPONDOWSKI, Administrative Patent Judge. DECISION ON APPEAL This is a decision on appeal under 35 U.S.C § 134(a) of the Examiner’s Final Rejection of claims 1 and 3–14, all claims currently pending in the application. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. Appeal 2017-009195 Application 14/814,566 2 STATEMENT OF THE CASE Appellants’ invention is directed to “portable electronic devices having proximity sensors.” Spec. ¶ 2. Claim 1, reproduced below with the disputed limitations in italics, is representative of the claimed subject matter: 1. Eyewear, comprising: a frame; one or more stems extending distally from the frame; one or more processors disposed within one or more of the frame or the one or more stems; one or more proximity sensor components disposed within the one or more stems and operable with the one or more processors, each proximity sensor component comprising an infrared signal receiver to receive an infrared emission from an object, the one or more stems each comprising a temple portion and an ear engagement portion, the one or more proximity sensor components disposed along the ear engagement portion; the one or more processors operable to execute a control operation when the one or more proximity sensor components receive the infrared emission from the object. REJECTION Claims 1 and 4–13 stand rejected under 35 U.S.C. § 103 as being unpatentable over Kovarik et al. (US 2011/0144453 A1; published June 16, 2011) (“Kovarik”). Ans. 2.1 1 The Examiner’s statement of rejection describes claims 1, 2, and 4–13 as standing rejected under U.S.C. § 103 as being unpatentable over Kovarik. Ans. 2. However, claim 2 has been canceled. App. Br. 24. The Examiner’s statement of rejection is in error and should only state that claims 1 and 4–13 stand rejected under 35 U.S.C. § 103 as being unpatentable over Kovarik. Appeal 2017-009195 Application 14/814,566 3 Claims 3 and 14 stand rejected under 35 U.S.C. § 103 as being unpatentable over Kovarik and Abreu (US 2008/0144854 A1; published June 19, 2008). Ans. 9. ANALYSIS Issue: Did the Examiner err in finding Kovarik teaches or suggests “the one or more proximity sensor components disposed along the ear engagement portion,” as recited in independent claim 1? The Examiner finds Kovarik’s sunglasses with sensors that can be positioned in the arms or elsewhere teach the claimed glasses with proximity sensors disposed along ear engagement portions. Ans. 3 (citing Kovarik Fig. 8, ¶ 34). Appellants contend Kovarik’s proximity sensors are in the temple portion rather than in the ear engagement portion. App. Br. 12. Specifically, Appellants argue Kovarik’s temple portion cannot teach both the claimed temple portion and the claimed ear engagement portion. App. Br. 19. Appellants further argue it would not be obvious to one of ordinary skill in the art to modify Kovarik by moving the sensors of Kovarik because the Examiner has provided no motivation or rational underpinning, and modifying Kovarik would render Kovarik’s sensors unsatisfactory for their intended purpose. App. Br. 14–15, 18. We are not persuaded of Examiner error by Appellants’ arguments. Appellants’ Specification describes proximity sensor components disposed along the first and second stems 102 and 103, and specifically disposed along the ear engagement portion 113 of the first and second stems 102 and 103. Spec. ¶ 43, Fig. 1. Claim 1, in light of Appellants’ Specification, does Appeal 2017-009195 Application 14/814,566 4 not require the sensors to be positioned only in the ear engagement portion but rather broadly encompasses the sensors being positioned along the arms and the ear engagement portion. See Ans. 11–12. As cited by the Examiner (Ans. 3, 11–14), Kovarik describes “the employment of sensors in glasses . . . where sensors can be positioned in the arms, the central frame or elsewhere about the sunglasses to provide the detection function desired . . . such that undesired physical contact . . . can be determined and avoided.” Kovarik ¶ 34; see Kovarik Fig. 8. In other words, Kovarik teaches placing sensors in the arms or elsewhere in glasses to provide proximity detection. Kovarik does not specify that the sensors are placed exclusively in the temple portion of the glasses, but rather that they are placed in the arms or elsewhere. Appellants have not provided persuasive evidence or argument that the claimed “proximity sensor components disposed along the ear engagement portion,” encompassing sensors being placed along the arms and ear engagement portion rather than only being placed in the ear engagement portion, is not taught or otherwise suggested by Kovarik’s sensors positioned in the arms or elsewhere on the glasses. We agree with the Examiner’s findings that moving Kovarik’s sensors to the ear engagement portion is explicitly suggested by Kovarik’s teaching of positioning the sensors “in the arms, the central frame or elsewhere” with the motivation “to provide the detection function.” Ans. 14 (citing Kovarik ¶ 14). Moreover, in light of Kovarik’s disclosure, Appellants have not presented persuasive evidence that placing the sensor along the ear engagement portion was “uniquely challenging or difficult for one of Appeal 2017-009195 Application 14/814,566 5 ordinary skill in the art” or “an unobvious step over the prior art.” Leapfrog Enterprises, Inc. v. Fisher-Price, Inc., 485 3d 1157, 1162 (Fed. Cir. 2007). Appellants further argue that the addition of Abreu to Kovarik does not correct the alleged deficiencies in Kovarik, and that the combination of Kovarik and Abreu “fails to make known or obvious the limitations of claim 1.” App. Br. 22; see App. Br. 19–21. However, the Examiner does not rely on Abreu in the rejection of claim 1, and rather relies solely on Kovarik. Ans. 2–4; Final Act. 3–5. For at least the above reasons we sustain the Examiner’s § 103 rejections of independent claim 1. For the same reasons, we sustain the Examiner’s 35 U.S.C. § 103 rejections of dependent claims 3–14, not argued separately. DECISION The Examiner’s decision to reject claims 1 and 3–14 is affirmed. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv). AFFIRMED