Ex Parte Cruz-Hernandez et al

Patent Trial and Appeal Board

Jun 13, 2016

12481030 (P.T.A.B. Jun. 13, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
12/481,030 0610912009
99292 7590 06/15/2016
Medler Ferro Woodhouse & Mills PLLC
8607 Rockdale Lane
Springfield, VA 22153
FIRST NAMED INVENTOR
Juan Manuel Cruz-Hernandez
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
IMM285X 4470
EXAMINER
WANG-HURST,KATHYW
ART UNIT PAPER NUMBER
2694
NOTIFICATION DATE DELIVERY MODE
06/15/2016 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):
tmedler@medlerferro.com
aferro@medlerferro.com
docketing@medlerferro.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte JUAN MANUEL CRUZ-HERNANDEZ,
DANNY A. GRANT, and ROBERT W. HEUBEL
Appeal2014-007156
Application 12/481,030
Technology Center 2600
Before KEVIN C. TROCK, ADAM J. PYONIN, and
AARON W. MOORE, Administrative Patent Judges.
PYONIN, Administrative Patent Judge.
DECISION ON APPEAL
This is a decision on appeal under 35 U.S.C. § 134(a) from a Final
Rejection of claims 1--4 and 8-19, which are all of the pending claims. See
App. Br. 13. We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.
Appeal2014-007156
Application 12/481,030
STATEMENT OF THE CASE
Introduction
Appellants' disclosure is directed to a hap tic "contro Iler [which] can
generate a brake pulse and/or kick-in pulse followed by a main pulse to
create an increased acceleration response, and/or a braking pulse to provide
a damping effect for a short mechanical type of haptic effect." Spec. i-f 5.
Claims 1, 8, 14, and 17 are independent. Claim 1 is reproduced below for
reference:
1. A method for generating haptic feedback, comprising:
monitoring an input pulse configured to drive an actuator;
generating haptic feedback in accordance with the input
pulse; and
generating a brake pulse after the input pulse has been
removed to reduce damping effect of haptic feedback generated
by the actuator, the brake pulse comprising a ramp down portion
having a slew rate of from about 0.2 volts per millisecond (V /ms)
to about 0.3 Vims.
References and Rejections
Claims 1--4 and 17-19 stand rejected under 35 U.S.C. § 103(a) as
being unpatentable over Takala (US 2008/0251364 Al; Oct. 16, 2008) and
Grant '562 (US 2005/0134562 Al; June 23, 2005). Final Act. 2.
Claims 8 and 10-13 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Grant '562. Final Act. 7.
Claims 9 and 14--16 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Grant '562 and Grant '573 (US 2006/0119573 Al; June 8,
2006). Final Act. 10.
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Application 12/481,030
ANALYSIS
We have reviewed the Examiner's rejections in light of Appellants'
arguments. We adopt the Examiner's findings and conclusions (see Final
Act. 2-14; Advisory Act. 1-2; Ans. 13-17) as our own, and we add the
following primarily for emphasis.
A. Independent Claim 1
Appellants argue the Examiner erred in rejecting independent claim 1,
because although "Grant '562 disclose[s] various signals used to drive a
haptic device[,] ... [t]he cited portions of Grant '562 do not disclose
generating a brake pulse after the input pulse has been removed" as claimed.
App. Br. 6. Appellants further argue the Examiner erred in finding it would
have been obvious to a person having ordinary skill in the art to use a brake
pulse having a slew rate within the range recited by claim 1, because
"neither Takala nor Grant '562 discloses any slew rate, let alone a slew rate
that was merely different in degree," nor has the Examiner "provided any
evidence that the slew rate of a ramp down portion of a brake pulse is
recognized in the art as a result-effective variable." Reply Br. 3; see also
App. Br. 6-7.
We are not persuaded the Examiner erred. Rather, we agree with the
Examiner that "Grant '562 disclose[ s] several waveforms that clearly show a
brake pulse being applied after the input pulse is removed" (Ans. 13; see
also Grant '562i-fi-f117, 121), and the "brake pulses of Grant '562 are being
used in the same manner as Applicant[s'] invention" (Ans. 14). We also
agree with the Examiner that "[ t ]he brake pulses of Grant '5 62 (Fig. 13, 17,
18) each inherently have a slew rate as all pulses in practice have a slew
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Appeal2014-007156
Application 12/481,030
rate." Ans. 14. We find the slew rate is a result effective variable that can
be optimized (Ans. 13-14), as Grant '562 discloses how different pulse
shapes (e.g., having different slew rates) will produce different haptic
sensations. 1 See Grant '562 i-fi-f 120-121, Figs. 13, 18; Ans. 14.
Therefore, we agree with the Examiner that "[i]t would have been
obvious to one of ordinary skill in the art at the time the invention was made
to use a slew rate of from about 0.2 volts per millisecond (V /ms) to about 0.3
Vims" as claimed (Final Act. 3), because it is well-settled that it would have
been obvious for an artisan with ordinary skill to develop workable or even
optimum ranges for result-effective parameters. See In re Boesch, 617 F.2d
272, 276 (CCPA 1980); In re Aller, 220 F.2d 454, 456 (CCPA 1955); In re
Woodruff, 919 F.2d 1575, 1577-78 (Fed. Cir. 1990). In contrast, Appellants
have not provided sufficient evidence of criticality, or otherwise persuaded
us that the claimed range would not have been obvious to an artisan of
ordinary skill.
Accordingly, we sustain the Examiner's rejection of independent
claim 1.
B. Independent Claim 14
Appellants argue the Examiner erred in rejecting independent claim
14 because Grant '562 does not teach or suggest the recited first and second
pulses, particularly a second pulse that is asserted prior to a return of a metal
1 "A recognition in the prior art that a property is affected by the variable is
sufficient to find the variable result-effective." In re Applied Materials, Inc.,
692 F.3d 1289, 1297 (Fed. Cir. 2012).
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Appeal2014-007156
Application 12/481,030
object in the actuator returning to a resting position, as required by the claim.
See App. Br. 11-12.
We are not persuaded of Examiner error. First, we note claim 14
recites conditional language (the clauses beginning with "when"); these
conditional clauses are not required for the patentability determination. 2
Second, we agree with the Examiner that the disputed "limitation is taught
by the combination of Grant '562 and Grant '573." Ans. 16. That is,
Appellants do not persuade us the Examiner erred in finding "the braking
pulse of Grant '562 is asserted prior to the return of a metal object in the
actuator returning to a resting position," "Grant '573 discloses first and
second pulses each with a rising edge (Fig. 6)," and "[t]he combination of
Grant '562 and Grant '573 discloses the limitations of claim [14] when Fig.
19B of Grant '562 is modified to have multiple rising edges as taught by Fig.
6 of Grant '573." Id.
Appellants present new arguments in the Reply Brief, regarding the
"short negative pulse described by Grant '562 at i-f[0121]." See Reply Br. 5.
Appellants, however, had the opportunity to raise these arguments in the
2 "[I]t is axiomatic that that which would literally infringe if later anticipates
if earlier." Bristo/Myers Squibb Co. v. Ben Venue Labs., Inc., 246 F.3d
1368, 1378 (Fed. Cir. 2001). Here, based on the manner in which claim 14
is written, a method that does not perform the recited "when" steps would
still infringe claim 14. See, e.g., Applera Corp. v. Illumina, Inc., 375 Fed.
Appx. 12, 21 (Fed. Cir. 2010) (unpublished) (affirming a district court's
interpretation of a method claim as including a step that need not be
practiced if the condition for practicing the step is not met); Cybersettle, Inc.
v. Nat'! Arbitration Forum, Inc., 243 Fed. Appx. 603, 607 (Fed. Cir. 2007)
(unpublished) ("It is of course true that method steps may be contingent. If
the condition for performing a contingent step is not satisfied, the
performance recited by the step need not be carried out in order for the
claimed method to be performed.").
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Application 12/481,030
Appeal Brief in response to the Examiner's findings in the Final Office
Action (see Final Act. 11) and the Advisory Action (see Adv. Act. 2). As
the new arguments by Appellants were not timely raised, they are deemed
waived. See Optivus Tech., Inc. v. Ion Beam Applications S.A., 469 F.3d
978, 989 (Fed. Cir. 2006) ("[A]n issue not raised by an appellant in its
opening brief ... is waived.") (internal citations and quotation marks
omitted); see also 37 C.F.R. § 41.41(b)(2).
Accordingly, we sustain the Examiner's rejection of independent
claim 14.
CONCLUSION
We are not persuaded the Examiner erred in the rejection of
independent claims 1 and 14, for the reasons discussed above. Appellants
present similar arguments with respect to independent claims 8 and 1 7,
which we find similarly unpersuasive of Examiner error. See App. Br. 7-10.
Accordingly, we sustain the Examiner's rejections of the independent
claims, as well as the claims dependent thereon, which Appellants do not
separately argue with particularity. See App. Br. 7, 9, 10, 13.
DECISION
The Examiner's rejection of claims 1--4 and 8-19 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)(l )(iv).
AFFIRMED
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