Ex Parte Broyles et al

Patent Trial and Appeal Board

Dec 23, 2016

12827893 (P.T.A.B. Dec. 23, 2016)

United States Patent and Trademark Office
UNITED STATES DEPARTMENT OF COMMERCE
United States Patent and Trademark Office
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P.O.Box 1450
Alexandria, Virginia 22313-1450
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APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
12/827,893 06/30/2010 Paul J. Broyles III 82263236 5854
22879
HP Tnr
7590 12/28/2016 EXAMINER
3390 E. Harmony Road
Mail Stop 35
CHOI, DAVID E
FORT COLLINS, CO 80528-9544 ART UNIT PAPER NUMBER
2174
NOTIFICATION DATE DELIVERY MODE
12/28/2016 ELECTRONIC
Please find below and/or attached an Office communication concerning this application or proceeding.
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PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte PAUL J. BROYLES III and CHRISTOPH J.
GRAHAM
Appeal 2016-004643
Application 12/827,893
Technology Center 2100
Before BRADLEY W. BAUMEISTER, JON M. JURGOVAN, and
MICHAEL J. ENGLE, Administrative Patent Judges.
JURGOVAN, Administrative Patent Judge.
DECISION ON APPEAL
Appellants seek review under 35 U.S.C. § 134(a) from a final
rejection of claims 1, 6—8, 10, 11, 15—17, 19, 20, and 22—31, which
constitute the only pending claims. We have jurisdiction under 35 U.S.C.
§ 6(b).
We affirm.1
1 Our Decision refers to the Specification filed June 30, 2010 (“Spec.”), the
Final Office Action mailed Jan. 28, 2015 (“Final Act.”), the Appeal Brief
filed June 23, 2015 (“App. Br.”), the Examiner’s Answer mailed Nov. 10,
2015 (“Ans.”), and the Reply Brief filed Jan. 6, 2016 (“Reply Br.”).
Appeal 2016-004643
Application 12/827,893
CLAIMED INVENTION
The claims are directed to controlling devices with gestures and multi­
protocol communications. (Spec. Abstract.) Claim 8, reproduced below
with argued limitations emphasized, is illustrative of the claimed subject
matter:
8. A control device comprising:
a sensor configured to detect a gesture from a user where
the sensor dynamically captures information from an
environment around the sensor to detect the user before detecting
the gesture from the user;
a communication component to send signals according to
different communication protocols to each of corresponding
devices and receive response signals from the corresponding
devices, the response signals being responsive to the signals sent
to the corresponding devices; and
at least one processor to:
determine a first of the different communication
protocols utilized by a first of the corresponding devices based
on the response signal from the first corresponding device, the
response signal from the first corresponding device being
responsive to one of the signals according to the different
communication protocols sent to the first corresponding device;
determine a second of the different communication
protocols utilized by a second of the corresponding devices
based on the response signal from the second corresponding
device, the response signal from the second corresponding
device being responsive to another of the signals according to
the different communication protocols sent to the second
corresponding device, the second communication protocol
different from the first communication protocol, wherein the first
and second communication protocols specify how the
communication component of the control device communicates
with respective communication components of the first and
second corresponding devices; and
send a command associated with the gesture to at
least one of the corresponding devices utilizing a respective one
of the first and second communication protocols.
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Application 12/827,893
(App. Br. Claims App’x (ii).)
REJECTIONS
Claims 1, 8, 10, 11, 23—25, 27, and 29-31 stand rejected under
35 U.S.C. § 103(a) based on Migos (US 2010/0169842 Al, July 1, 2010),
Geisner (US 2010/0277489 Al, Nov. 4, 2010), and Broos
(US 2008/0301729 Al, Dec. 4, 2008). (Final Act. 3-18.)
Claims 5 and 7 stand rejected under 35 U.S.C. § 103(a) based on
Migos, Geisner, Broos, and Vrielink (US 2005/0149639 Al, July 7, 2005).
(Final Act. 18—21.)
Claims 6, 15, 16, 19, 20, 22, 26, and 28 stand rejected under 35 U.S.C.
§ 103(a) based on Migos, Geisner, Broos, and Himmelstein
(US 2003/0122652 Al, July 3, 2003). (Final Act. 21-31.)
Claim 17 stands rejected under 35 U.S.C. § 103(a) based on Migos,
Geisner, Broos, Himmelstein, and Vrielink. (Final Act. 31—34.)
Claim 17 stands rejected under 35 U.S.C. § 103(a) based on Migos,
Geisner, Broos, Himmelstein, and Shamaie (US 2009/0051648 Al, Feb. 26,
2009). (Final Act. 34—35).
CONTENTIONS AND ANALYSIS
In the following analysis, we address Appellants’ arguments seriatim
as presented in the Appeal Brief.
Claim 8
Appellants argue that paragraph 40 of Broos, the reference cited by
the Examiner in the rejection, uses infrared on the communication link from
the remote control 107 to devices 101, 102, and 103, and Bluetooth on the
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Application 12/827,893
link from devices 101, 102, and 103 back to remote control 107. (App. Br.
4—6, 7—11.) Appellants argue this teaching of Broos does not disclose a
communication component to send signals according to different
communication protocols to each of corresponding devices, as claimed. (Id.)
Appellants also argue Broos provides no indication of any response
signal in reply to the infrared signal sent from the device 101, 102, or 103 to
the remote control 107, particularly not one in the same protocol as the sent
signal, as claimed. (App. Br. 10, Reply Br. 7—9.)
Appellants further argue that, although Broos teaches the use of
different wireless communication technologies, just one of these
technologies is selected for implementing the communication link between
the remote control 107 and the device 101, 102, or 103. (App. Br. 11—12
citing Broos 25—29, 40.) Therefore, Appellants argue, Broos fails to teach
or suggest a communication component using different communication
protocols sent to each of corresponding devices. (Id.)
We do not agree with Appellants’ arguments. As the Examiner notes,
Broos states the wireless communication technology can be one or more of
WiFi, Bluetooth, infrared, and radio frequency technologies. (Final Act. 12—
15, Ans. 4—6 citing Broos Tflf 25—31.) Accordingly, Broos teaches more than
one wireless protocol may be used to establish links between the remote
control 107 and the devices 101, 102, and 103. Appellants’ argument that
one device must receive multiple signals in different protocols is not
commensurate with the broadest reasonable interpretation of the claim scope
as currently written, which instead requires the devices collectively receive
multiple signals in different protocols but each individual device need only
receive “one of the signals according to the different communication
protocols.” See, e.g., claim 8 (emphasis added).
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Furthermore, Broos teaches the links may be bidirectional, suggesting
that sent signals may have response signals using the same protocols as the
signals sent. (Final Act. 14, Ans. 5 citing Broos 140.) Elsewhere in Broos,
there is specific mention of a response from a device to a remote control.
(Broos 146 (cited at Final Act. 13).) Accordingly, we are not persuaded the
Examiner errs in the rejection.
Moreover, Broos teaches the wireless communication technologies
that link the remote control 107 and the devices 101, 102, and 103 can be
simultaneous, meaning that multiple simultaneous links using different
protocols may support communication between these units. (Final Act. 12—
15, Ans. 4—6 citing Broos 140.)
But even if we were to assume for the sake of argument, without
deciding, that Broos’s teaching must be interpreted more narrowly so as to
be disclosing, at most, that the multiple simultaneous links use the same
wireless protocol out of an array of candidate protocols (see App. Br. 11—
12), Appellants arguments would still be unpersuasive. The disputed
rejection is one of obviousness under 35 U.S.C. § 103—not one of
anticipation. We understand the Examiner’s position to be that using
different protocols simultaneously would have been at least obvious. See
Ans. 5—6 (setting forth a rationale for why it would have been obvious to use
distinct protocols). Appellants do not address this position that Broos’s
teachings render the claim language at least obvious. (App. Br. 7—12.)
Claim 29
Appellants contend that Migos, one of the references the Examiner
relies upon for claim 29, fails to teach sending of a command to a
corresponding device in response to determining that a device is in a first
mode of operation corresponding to a gesture. (App. Br. 12—14; Reply Br.
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11—13 (citing Migos 39-43).) The Examiner finds that if a user gestures
to enter a ‘2,’ then the device must be capable of determining the device is in
a mode of operation to accept television channel commands, or if the user
enters a ‘V’ then the device must be in a mode of operation to determine the
user is controlling the audio volume. (Ans. 6—7.)
We agree with the Examiner that Migos teaches or at least suggests a
device must be determined to be in a mode of operation (e.g., powered on)
before sending it a command. This is particularly true in the absence of any
definition in the Specification or claim that would restrict the meaning of
“mode of operation” in a manner to distinguish over Migos. In re Am. Acad.
ofSci. Tech. Ctr., 367 F.3d 1359, 1369 (Fed. Cir. 2004) (claim terms are
given their broadest reasonable interpretation consistent with the
Specification). As the Examiner’s findings and conclusion are reasonable,
we are not persuaded of Examiner error.
Claim 30
Appellants contend the Examiner’s mistaken grouping of claim 30 in
a rejection over Migos, Geisner, and Broos, which does not include
Himmelstein, is reversible error. (App. Br. 14—15, Reply Br. 13—14.) We do
not agree.
As Appellants acknowledge, the Examiner asserted the subject matter
of claim 30 is substantially similar to claim 26, so that the same rationale of
rejection applies. (Final Act. 17.) Although the Examiner mistakenly
groups claim 30 with others rejected over only Migos, Geisner, and Broos
(Ans. 7), there was sufficient information in the Final Office Action to
apprise Appellants that the thrust of the rejection against claim 30 was
intended to include Himmelstein, as well as Migos, Geisner, Broos.
(Final Act. 21.) Accordingly, we view the incorrect claim grouping as
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constituting harmless error. See In re Adler, 723 F.3d 1322, 1328 (Fed. Cir.
2013) {citing In re Kronig, 539 F.2d 1300, 1302-03 (CCPA 1976)).
Remaining Claims
Appellants’ arguments with respect to the remaining claims repeat
those previously addressed. (See App. Br. 16—21.) We therefore find the
arguments unpersuasive for the reasons stated.
DECISION
We affirm the Examiner’s rejection of claims 1, 6—8, 10, 11, 15—17,
19, 20, and 22-31 under 35 U.S.C. § 103(a).
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(l)(iv).
AFFIRMED
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