Ex Parte Okamura et al

Patent Trial and Appeal Board

Jun 21, 2016

12621813 (P.T.A.B. Jun. 21, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
12/621,813 11/19/2009
27562 7590 06/23/2016
NIXON & V ANDERHYE, P,C
901 NORTH GLEBE ROAD, 11 TH FLOOR
ARLINGTON, VA 22203
FIRST NAMED INVENTOR
Yuichiro Okamura
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.
LB-723-2688 3178
EXAMINER
EDWARDS, CAROLYN R
ART UNIT PAPER NUMBER
2625
NOTIFICATION DATE DELIVERY MODE
06/23/2016 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):
PTOMAIL@nixonvan.com
pair_nixon@firsttofile.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte YUICHIRO OKAMURA and YOSHINORI KONISH
Appeal2014-008306
Application 12/621,813
Technology Center 2600
Before CAROLYN D. THOMAS, KARA L. SZPONDOWSKI, and
SHARON PENICK, Administrative Patent Judges.
THOMAS, Administrative Patent Judge.
DECISION ON APPEAL
Appellants seek our review under 35 U.S.C. § 134(a) of the
Examiner's final rejection of claims 1-19, all the pending claims in the
present application. We have jurisdiction over the appeal under 35 U.S.C.
§ 6(b ).
We REVERSE.
The present invention relates generally to processing acceleration data
outputted from an acceleration detection section. See Spec. i-f 1.
Appeal2014-008306
Application 12/621,813
Claim 1 is illustrative:
1. A non-transitory computer readable storage
medium having stored thereon an information processing
program executed on a computer of an information processing
apparatus which executes a process using acceleration data
outputted from an acceleration sensor detecting acceleration
along at least two axis directions applied to an input device, the
information processing program causing the computer to
perform:
data obtaining for repeatedly obtaining the
acceleration data;
acceleration vector generation for generating first
acceleration vector in accordance with first acceleration data
obtained by the data obtaining , and for generating second
acceleration vector in accordance with second acceleration data
obtained by the data obtaining time-sequentially following the
first acceleration data;
cross product direction calculation for calculating a
direction of a cross product between the first acceleration vector
and the second acceleration vector; and
swing direction identification for identifying a
swing direction in which the input device is swung in
accordance with the direction of the cross product.
Appellants appeal the following rejection:
Claims 1-19 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over Haga (US 2007/0265104 Al, Nov. 15, 2007) and
Takemoto (US 2004/0021664 Al, Feb. 5, 2004).
ANALYSIS
Claims 1-19
Issue: Did the Examiner err in combining Raga's swing direction
calculation with Takemoto's cross product direction calculation?
Appellants contend:
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Appeal2014-008306
Application 12/621,813
Haga also does not teach or suggest identifying a swing
direction of the input device "in accordance with the direction
of the cross product." Instead, Haga teaches that the
determination of the swing direction is based on a numerical
value of the acceleration ax of the x-axis or its signs (plus and
minus) at an initial period or in the middle of the swinging
motion ....
According to the above, the acceleration ax is compared to two
threshold values ... This has nothing to do with looking at the
cross product of the two acceleration vectors, and then based on
the direction of the cross product, determining the swing
direction.
(App. Br. 13-14). Appellants further contend that "Takemoto does not teach
or suggest using the direction of the cross product of the two acceleration
vectors to determine the swing direction" (id. at 14).
Here, the Examiner concedes that in Haga "the identification of the
swing direction was calculated using a different method" then done in the
present invention (see Ans. 4), "therefore Takemoto was used in
combination with Haga in order to show that the swing direction can be
calculated in accordance with the direction of the cross product" (id.)
(emphasis added). The Examiner further reasons that "[a]pplying such a
well-known technique ... would have yielded predictable results for better
accuracy" (id. at 5). We disagree with the Examiner.
In essence, this issue turns on whether the Examiner has shown that
the cited combination of references illustrates a nexus between a swing
direction and a cross product between acceleration vectors. We find no such
nexus. Instead, Haga merely discloses identifying a swing direction, without
any regard to a cross product direction calculation (see Haga i-f 87).
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Appeal2014-008306
Application 12/621,813
Similarly, Takemoto teaches calculating a cross product of two direction
vectors (see Takemoto i-f 98), without any regard to a swing direction.
Here, we are particularly troubled by the chain of causation that is
split between the two references in the Examiner's proffered combination of
Haga and Takemoto because the Examiner's proffered evidence does not
show a linkage between the "cross product direction calculation~' and the
"swing direction identification." A rejection based cm 35 U.S.C. § 103 must
rest on a factual basis. In re ~Varner, 379, F.2d 1011, 1017 (CCPA .. 1967).
In making such a rejection, the Examiner has the initial duty of supplying
the requisite factual basis and may not, perhaps because of doubts that the
invention is patentable, resort to speculation, unfounded assumptions or
hindsight reconstruction to supply deficiencies in the factual basis (id.).
Given the lack of any supporting evidence, we are constrained to conclude
that the summary determination that "a person having ordinary skills in the
art at the time of the invention would have been able to use Takemoto's
teaching in Haga' s teaching since Haga' s invention is related to a swinging
motion of an operating [sic] causing virtual objects in a gaming system to
produce sound" (see Ans. 4) rests on speculation, unfounded assumptions
and/or hindsight reconstruction of the claimed invention.
'--'
Therefore, we find Appellants' arguments persuasive primarily
because without a nexus between Raga's swing direction identification and
Takemoto's cross product direction calculation mechanisms, the Examiner's
reasons to combine are merely conjecture. Thus, we disagree with the
Examiner's finding that Takemoto in combination with Haga teaches the
swing direction can be calculated in accordance with the direction of the
cross product, as recited in each of the independent claims. Because we
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Appeal2014-008306
Application 12/621,813
agree with at least one of the arguments advanced by Appellants, we need
not reach the merits of Appellants' other arguments. Accordingly, we will
not sustain the Examiner's obviousness rejection of claims 1-19.
DECISION
We reverse the Examiner's§ 103(a) rejection of claims 1-19 over
Haga and Takemoto.
REVERSED
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