Ex Parte Kelsey et al

Patent Trial and Appeal Board

Sep 26, 2016

14079692 (P.T.A.B. Sep. 26, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
14/079,692 11/14/2013
128836 7590 09/28/2016
Womble Carlyle Sandridge & Rice LLP
Attn: IP Docketing
P.O. Box 7037
Atlanta, GA 30357-0037
FIRST NAMED INVENTOR
William D. Kelsey
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.
B86918 1400US.CP1 3848
EXAMINER
GUPTA, PARUL H
ART UNIT PAPER NUMBER
2627
NOTIFICATION DATE DELIVERY MODE
09/28/2016 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):
ipdocketing@wcsr.com
patentadmin@Boeing.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte WILLIAM D. KELSEY, BRIAND. LAUGHLIN, and
RICHARD N. BLAIR
Appeal2015-006694
Application 14/079,692
Technology Center 2600
Before CARLA M. KRIVAK, ERIC B. CHEN, and JOHN F. HORVATH,
Administrative Patent Judges.
CHEN, Administrative Patent Judge.
DECISION ON APPEAL
This is an appeal under 35 U.S.C. § 134(a) from the final rejection of
claims 1-21, all the claims pending in the application. We have jurisdiction
under 35 U.S.C. § 6(b). We affirm-in-part.
STATEMENT OF THE CASE
Appellants' invention relates to a system configured to provide sensed
input, including measurements of motion of a user during performance of a
task, where the motion may include a gesture performed in one of multiple
3D zones in an environment defined to accept respective, distinct gestures.
(Abstract.)
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Application 14/079,692
Claims 1, 5, and 6 are exemplary, with disputed limitations in italics:
1. A ubiquitous natural user system comprising:
one or more sensors configured to provide sensed input
including measurements of motion of a user during performance of a
task by the user, the motion including a gesture performed in a three-
dimensional (3D) zone in an environment of the user, the 3D zone
being one of a plurality of 3D zones in the environment that are
defined to accept respective, distinct gestures of the user; and
a front-end system coupled to the one or more sensors, and
configured to receive and process the sensed input including the
measurements to identify the gesture and from the gesture,
identify operations of an electronic resource, the front-end
system being configured to identify the gesture based on the one of
the plurality of 3D zones in which the gesture is performed,
wherein the front-end system is configured to from and
communicate an input to cause the electronic resource to perform the
operations and produce an output, and
wherein the front-end system is configured to receive the output
from the electronic resource, and communicate the output to a display
device; audio output device or haptic sensor.
5. The ubiquitous natural user system of Claim 1, wherein
the gesture is a first gesture, and the motion further includes a second
gesture performed in the environment of the user and that is distinct
from the respective, distinct gestures that the plurality of 3D zones are
defined to accept, and
wherein the front-end system being configured to receive and
process the sensed input includes being configured to receive and
process the sensed input to further identify the second gesture, the
operations of the electronic resource including operations identified
from the first gesture and operations identified from the second
gesture, the front-end system being configured to identifY the second
gesture without regard to the plurality of 3D zones.
6. The ubiquitous natural user system of Claim 1, wherein
the front-end system being configured to communicate the output
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includes being configured to communicate the output to the display
device, the output being communicated in one of a plurality of distinct
desktop environments displayable in respective facets of a three-
dimensional, multifaceted graphical user interface.
Claims 1-21 stand rejected under the judicially created doctrine of
obviousness-type double patenting as unpatentable over claims 1-21 of
commonly owned Laughlin Application (US 2014/0354529 Al; Dec. 4,
2014).
Claims 1-21 stand rejected under the judicially created doctrine of
obviousness-type double patenting as unpatentable over claims 1-21 of
commonly owned Laughlin (US 9,395,810 B2; July 19, 2016).
Claims 1-21 stand rejected under 35 U.S.C. § 103(a) as unpatentable
over Pretlove (US 2004/0189675 Al; Sept. 30, 2004) and Izumi
(US 2012/0056989 Al; Mar. 8, 2012).
Double Patenting Rejections
We are persuaded by Appellants' arguments (App. Br. 8; see also
Reply Br. 1-2) that the Examiner has not shown that claims 1-21 are
unpatentable under the judicially created doctrine of obviousness-type
double patenting over claims 1-21 of commonly owned Laughlin
Application and over claims 1-21 of commonly owned Laughlin.
The Examiner found that:
Although the claims at issue are not identical, they are not
patentably distinct from each other because the instant
application discusses potential use of a haptic sensor as an option
while the copending application discusses a three dimensional
model. As this is merely an option, the same set of main
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limitations is discussed in both sets of claims. The maJor
hardware and use is similar in both applications.
(Final Act. 3--4.) We do not agree.
The key question in any obviousness double patenting analysis is:
"Does any claim in the application define merely an obvious variation of an
invention claimed in the patent asserted as supporting double patenting?"
General Foods Corp. v. Studiengesellschaft Kahle mbH, 972 F.2d 1272,
1278 (Fed. Cir. 1992) (discussing In re Vogel, 422 F.2d438(CCPA1970)).
Answering this question requires that the decision maker first construe the
claims in the patent and the claims under review and determine the
differences between them. Eli Lilly and Co. v. Barr Labs., Inc., 251 F .3d
955, 970 (Fed. Cir. 2001). After determining the differences, the decision
maker must determine whether the differences in the subject matter render
the claims patentably distinct. Id.
However, the Examiner has neither: (i) construed the claims under
review, (ii) nor construed the claims of commonly owned Laughlin
Application or commonly owned Laughlin, much less determined the
differences between such claims. Instead, the Examiner merely provides a
conclusory statement that the "instant application discusses potential use of a
haptic sensor as an option while the copending application discusses a three-
dimensional model" and "[t]he major hardware and use is similar in both
applications" (Final Act. 3--4), without providing a citation to the conflicting
claims and without providing any supporting rationale or explanation. Thus,
on the record before us, the Examiner has not established a prima facie case
that claims 1-21 would have been an obvious variation to one of ordinary
skill in the art over claims 1-21 of commonly owned Laughlin Application
and claims 1-21 of commonly owned Laughlin.
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Accordingly, we are persuaded by Appellants' arguments that the
Examiner provides "broad conclusory statements ... without any
explanation to support the conclusion that the claims are patentably
indistinct from either the '252 application [Laughlin Application] or the '242
application [Laughlin], and therefore cannot form the basis of a proper
rejection." (App. Br. 8.)
Thus, we do not sustain the rejection of claims 1-21 under the
judicially created doctrine of obviousness-type double patenting over
claims 1-21 of commonly owned Laughlin Application or over claims 1-21
of Laughlin.
§ 103 Rejection-Pretlove and Izumi
Claims 1--4, 8-11, and 15-18
We are unpersuaded by Appellants' arguments (App. Br. 12-13; see
also Reply Br. 4--5) that the combination of Pretlove and Izumi would not
have rendered obvious independent claim 1, which includes the limitation
"the 3D zone being one of a plurality of 3D zones in the environment that
are defined to accept respective, distinct gestures of the user."
The Examiner finds that different positions and sizes for the virtual
operation screen of Izumi, as illustrated in Figure 11, and the three-layered
operation region of Izumi, as illustrated in Figure 27, collectively correspond
to the limitation "the 3D zone being one of a plurality of 3D zones in the
environment that are defined to accept respective, distinct gestures of the
user." (Ans. 2-3; see also Final Act. 6.) We agree with the Examiner.
Izumi relates to "an image recognition apparatus and an operation
determining method for determining a movement of a measurement target
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from an image photographed by a video camera." (if 1.) Figure 1 of Izumi
illustrates operation input system (if 31 ), including three-dimensional display
device 111 and operator 102, such that operator 102 "can perform an
operation to a virtual operation screen stereoscopically displayed in a
constant position between the operator 102 and the three-dimensional
display device 111" (if 84 ). Figure 11 of Izumi illustrates an embodiment
with multiple operation regions, including operation region 811 for adult
operator 810 and operation region 821 for child operator 820, having a lower
height and a shorter arm length. (if 114.) Because Izumi explains that the
virtual operation screen includes operation region 811 and operation
region 821, Izumi teaches the limitation "the 3D zone being one of a
plurality of 3D zones."
Figure 27 of Izumi illustrates another embodiment, such that when
"finger 601 enters in the z axis direction from the trigger face 701, it is
determined that the operation is performed" in one of three layers (i.e., layer
A to layer C). (if 129.) Izumi explains that "in layer A, at the time when the
finger 601 passes the trigger face 701, the object pointed around a position
shown in an icon showing the finger 601, for example, in a rotating
icon 4503 is rotated in response to the movement of the finger 601." (Id.)
Similarly, Izumi explains that "in layer C, a movement icon 4505 is
displayed in a position of the finger 601 on the target displayed and pointed
on the three-dimensional display device 111, thereby making it possible to
move the object in accordance with the movement of the finger 601."
(if 130.) Because Izumi explains that rotating icon 4503 in layer A is rotated
in response to the movement of the finger 601 (i.e., rotation motion) and
movement icon 4505 is moved in response to the movement of the
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finger 601 (i.e., vertical or horizontal motion), Izumi teaches the limitation
"in the environment that are defined to accept respective, distinct gestures of
the user."
Appellants argue that "nowhere does Izumi disclose a plurality of 3D
operation regions defined for respective, distinct gestures; or identifying a
gesture based on the 3D operation region in which the gesture is performed."
(App. Br. 13.) Similarly, Appellants argue "[e]ven if one could argue that
Izumi discloses different 3D operation regions for adults and children, this
still does not meet the claimed invention, which requires not only different
3D zones, but that those 3D zones be defined to accept respective, distinct
gestures." (Reply Br. 5.) Contrary to Appellants' argument, Figures 11 and
27 of Izumi illustrate movement icon 4505 and rotating icon 4503, such that
movement of each icon requires a different motion for finger 601.
Thus, we agree with the Examiner that the combination of Pretlove
and Izumi would have rendered obvious independent claim 1, which
includes the limitation "the 3D zone being one of a plurality of 3D zones in
the environment that are defined to accept respective, distinct gestures of the
user."
Accordingly, we sustain the rejection of independent claim 1 under 35
U.S.C. § 103(a). Claims 2--4 depend from claim 1, and Appellants have not
presented any substantive arguments with respect to these claims.
Therefore, we sustain the rejection of claims 2--4 under 35 U.S.C. § 103(a),
for the same reasons discussed with respect to independent claim 1.
Independent claims 8 and 15 recite limitations similar to those
discussed with respect to independent claim 1, and Appellants have not
presented any additional substantive arguments with respect to these claims.
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We, therefore, sustain the rejection of claims 8 and 15, as well as dependent
claims 9-11 and 16-18, not separately argued, for the same reasons
discussed with respect to claim 1.
Dependent Claim 5, 12, and 19
We are persuaded by Appellants' arguments (App. Br. 13-14) that the
combination of Pretlove and Izumi would not have rendered obvious
dependent claim 5, which includes the limitation "the front-end system being
configured to identify the second gesture without regard to the plurality of
3D zones."
The Examiner also found that different positions and sizes for the
virtual operation screen of Izumi, as illustrated in Figure 11, and the three-
layered operation region of Izumi, as illustrated in Figure 27, collectively
correspond to the limitation "the front-end system being configured to
identify the second gesture without regard to the plurality of 3D zones."
(Ans. 2-3; Final Act. 8-9.) We do not agree.
As discussed previously, in reference to Figure 27, Izumi explains that
"in layer A, at the time when the finger 601 passes the trigger face 701, the
object pointed around a position shown in an icon showing the finger 601,
for example, in a rotating icon 4503 is rotated in response to the movement
of the finger 601." (i-f 129.) Similarly, Izumi explains that "in layer C, a
movement icon 4505 is displayed in a position of the finger 601 on the target
displayed and pointed on the three-dimensional display device 111, thereby
making it possible to move the object in accordance with the movement of
the finger 601." (i-f 130.)
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Although the Examiner cited to the embodiments of Figures 11 and 27
of Izumi (Ans. 2-3; Final Act. 8-9), the Examiner has provided insufficient
evidence to support a finding that Izumi teaches the limitation "the front-end
system being configured to identify the second gesture without regard to the
plurality of 3D zones." In particular, Izumi explains that "rotating icon 4503
is rotated in response to the movement of the finger 601" (i.e., rotation
motion) in layer A (i-f 129) and "movement icon 4505 ... making it possible
to move the object in accordance with the movement of the finger 601" (i.e.,
vertical or horizontal motion) in layer C (i-f 130). However, Izumi is silent
with respect to the use of the rotating finger motion being operable, for
example, in a different operation region other than in zone A. In other
words, Izumi does not state that the rotating finger motion is operable in
zone C of Izumi. On this record, the Examiner has not demonstrated that
Izumi teaches the limitation "the front-end system being configured to
identify the second gesture without regard to the plurality of 3D zones."
Thus, we are persuaded by Appellants' arguments that "nowhere does
Izumi here disclose a gesture distinct from those that a plurality of 3D zones
are defined to accept, or identification of a gesture without regard to a
plurality of 3D zones (or even without regard to its 3D operation region)."
(App. Br. 13-14.)
Accordingly, we do not sustain the rejection of dependent claim 5
under 35 U.S.C. § 102(e).
Dependent claims 12 and 19 recite limitations similar to those
discussed with respect to dependent claim 5. We do not sustain the rejection
of claims 12 and 19 for the same reasons discussed with respect to claim 5.
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Dependent Claims 6, 7, 13, 14, 20, and 21
We are further persuaded by Appellants' arguments (App. Br. 14--15;
see also Reply Br. 6-7) that the combination of Pretlove and Izumi would
not have rendered obvious dependent claims 6 and 7, which include the
limitation "three-dimensional, multifaceted graphical user interface."
The Examiner found that the 3D graphical representation of the visual
information of Pretlove, or alternatively, the three-dimensional display
device of Izumi corresponds to the limitation "three-dimensional,
multifaceted graphical user interface." (Final Act. 9; Ans. 3.) We do not
agree.
Pretlove relates to an augmented reality system (i-f l) in which an
operator can be physically separated from the location where the tasks or
processes are preformed (i-f 2). Figure 2 of Pretlove illustrates a block
diagram of an augmented reality system, such that "[t]he remote operator 3
is able to interact with the system through the pointing and interaction
device 13" (i-f 50) and that the output from pointing device 13 can be used by
graphics unit 37 to generate a 3D graphical representation of visual
information by graphics unit 37 (i-f 52).
Izumi explains that for three-dimensional display device 111,
movement of the operator 102 is photographed by video camera 201 and
"computer 110 produces a stereoscopic image of the operator 102 from data
obtained from the video camera 201 and calculates an optimal position of
the virtual operation screen." (i-f 92.) Izumi further explains that virtual
operation screen is two-dimensional. (i-f 94; see also Fig. 5.)
Although the Examiner cited to the 3D graphical representation of
Pretlove produced by graphics unit 37 or alternatively, three-dimensional
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display device 111 of Izumi (Final Act. 9; Ans. 3), the Examiner has
provided insufficient evidence to support a finding that Pretlove and Izumi,
either individually or in combination, teach the limitation "three-
dimensional, multifaceted graphical user interface." In particular, graphics
unit 37 of Pretlove produces a 3D graphical representation of visual
information, but is silent with respect to such 3D graphical representation
being utilized as a graphical user interface, much less a "three-dimensional,
multifaceted graphical user interface," as claimed. Moreover, the virtual
operation screen of Izumi is a two-dimensional, single faceted graphical user
interface, rather than a "three-dimensional, multifaceted graphical user
interface," as claimed. On this record, the Examiner has not demonstrated
that Pretlove and Izumi, either individually or in combination, teach the
limitation "three-dimensional, multifaceted graphical user interface."
Thus, we are persuaded by Appellants' arguments that "nowhere does
Pretlove ... disclose a 3D, multifaceted GUI, much less one in which a
plurality of distinct desktop environments are displayable in respective
facets" (App. Br. 14) and "Izumi's ... GUI is not a 3D, multifaceted GUI,
nor does it display distinct desktop environments displayable in respective
facets of a 3D, multifaceted GUI" (id. at 15).
Accordingly, we do not sustain the rejection of dependent claims 6
and 7 under 35 U.S.C. § 103(a).
Dependent claims 13, 14, 20, and 21 recite limitations similar to those
discussed with respect to dependent claims 6 and 7. We do not sustain the
rejection of claims 13, 14, 20, and 21 for the same reasons discussed with
respect to claims 6 and 7.
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DECISION
The Examiner's decision rejecting claims 1-21 under the judicially
created doctrine of obviousness-type double patenting is reversed.
The Examiner's decision rejecting claims 1--4, 8-11, and 15-18 under
35 U.S.C. § 103(a) is affirmed.
The Examiner's decision rejecting claims 5-7, 12-14, and 19-21
under 35 U.S.C. § 103(a) is reversed.
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-IN-PART
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