Ex Parte Poot et al

Patent Trials and Appeals Board

May 31, 2019

12475297 - (D) (P.T.A.B. May. 31, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
12/475,297 05/29/2009
69316 7590 06/04/2019
MICROSOFT CORPORATION
ONE MICROSOFT WAY
REDMOND, WA 98052
FIRST NAMED INVENTOR
Rudy Jacobus Poot
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.
326337-US-NP 3227
EXAMINER
PARKER, JEFFREY ALAN
ART UNIT PAPER NUMBER
2625
NOTIFICATION DATE DELIVERY MODE
06/04/2019 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):
usdocket@microsoft.com
chriochs@microsoft.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte RUDY JACOBUS POOT and BRIAN EUGENE KEANE
Appeal2017-005615 1
Application 12/475,2972
Technology Center 2600
Before DENISE M. POTHIER, JOHN D. HAMANN, and
JASON M. REPKO, Administrative Patent Judges.
HAMANN, Administrative Patent Judge.
DECISION ON APPEAL
Appellants file this appeal under 35 U.S.C. § 134(a) from the
Examiner'sFinalRejectionofclaims 1-5, 7-10, 12-19, and21-25. We
have jurisdiction under 35 U.S.C. § 6(b ).
We affirm.
1 Our Decision relies upon Appellants' Appeal Brief ("App. Br.," filed July
5, 2016, with a corrected Claim App'x filed on Sept. 1, 2016), Reply Brief
("Reply Br.," filed Feb. 21, 2017), and Specification ("Spec.," filed May
29, 2009), as well as the Examiner's Answer ("Ans.," mailed Dec.
20, 2016), the Advisory Action ("Adv. Act.," mailed Apr. 21, 2016), and the
Final Office Action ("Final Act.," mailed Jan. 20, 2016).
2 According to Appellants, the real party in interest is Microsoft Technology
Licensing, LLC. App. Br. 1.
Appeal2017-005615
Application 12/475,297
THE CLAIMED INVENTION
Appellants' claimed invention relates to "track[ing] a user's motions
or gestures performed in a physical space and map[ping] them to a visual
representation of the user." Abstract. For example, "[t]he user's gestures
may be translated to a control in a system or application space ... for
making modifications to a visual representation ... of a virtual object or a
display that maps to a target in the physical space." Id. Claim 1 is
illustrative of the subject matter of the appeal and is reproduced below.
1. A method for customizing a visual representation of a
user, the method comprising:
generating a skeletal or mesh model of the user based on a
depth image of at least part of the user;
rendering the visual representation of the user based on the
skeletal or mesh model of the user;
receiving data of a scene, wherein the data includes data
representative of a first modification gesture of the user in a
physical space, the first modification gesture being a gesture that
is recognized by a gesture filter as a control identifying that the
user wishes to customize a body part of the visual representation;
receiving data including data representative of a second
modification gesture of the user in the physical space, the second
modification gesture indicating a modification of a body part of
the skeletal or mesh model that the user wishes to apply to
customize the visual representation;
modifying a dimension of size of a body part of the
skeletal or mesh model of the user that the user wishes to
customize relative to a dimension of size of another body part of
the skeletal or mesh model of the user based on a physical
characteristic of the visual representation of the user identifying
the body part of the skeletal or mesh model the user wishes to
customize; and
controlling the customized visual representation in
response to subsequent movements of the user in the physical
space.
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Application 12/475,297
REJECTION ON APPEAL
The Examiner rejected claims 1-5, 7-10, 12-19, and 21-25 under
35 U.S.C. § I03(a) as being unpatentable over the combination of Marti et
al. (US 2010/0053151 Al; published Mar. 4, 2010) (hereinafter "Marti") and
Hunter (US 2007/0211067 Al; published Sept. 13, 2007) (hereinafter
"Hunter").
ANALYSIS
We have reviewed the Examiner's rejection in light of Appellants'
arguments that the Examiner erred. We disagree with Appellants'
arguments for the reasons discussed below.
(1) First Modification Gesture
Appellants argue that the combination of Marti and Hunter fails to
teach or suggest "a first modification gesture of the user in a physical space,
the first modification gesture being a gesture that is recognized ... as a
control identifying that the user wishes to customize a body part of the visual
representation," as recited in independent claims 1, 14, and 23. App. Br.
12-14 (emphases added). Appellants argue that Marti does not teach or
suggest a "first modification gesture" in physical space for initiating
customization. Id. at 12. Specifically, Appellants argue that Marti's
teaching of a user causing a collision of a user's hand with an object on a
display cannot constitute the first modification gesture because "[t]he
'collision' is not a gesture, is performed in the imaging ('virtual') space
rather than in the physical space as claimed, and in no way suggests that the
user wishes to customize" a body part. Id. at 12-13.
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Application 12/475,297
The Examiner finds that the combination of Marti and Hunter teaches
or suggests the disputed limitation. Ans. 11-15; Adv. Act. 2. More
specifically, the Examiner finds that Marti teaches a first modification
gesture via its teaching of a user, who wishes to select a displayed object for
manipulation, moving her hand in physical space (i.e., behind a device's
screen) so that a corresponding representation of her hand on the screen
collides with the displayed object. E.g., Ans. 13-14 ( citing Marti ,r,r 31-33,
36-38, Fig. 4). In support of this finding, the Examiner cites, inter alia,
Marti's paragraph 3 7, which recites that a "user moves her hand behind the
device in a way that causes the digital representation of her hand on the
screen to collide with the object, at which point she can grab, pick up, or
otherwise manipulate the object." Id. at 14 (citing Marti ,r 37). In addition,
the Examiner relies on Hunter for its teaching of customizing a visual
representation of a user, in lieu of an object. E.g., Ans. 10, 16 (citing Hunter
,r,r 42--43); Adv. Act. 2.
We agree with the Examiner's findings and adopt them as our own.
For example, we agree Marti teaches a first modification gesture via its
teaching that a user, who wishes to select a displayed object for
manipulation, moves her hand behind a device's screen to cause the
representation of her hand displayed on the screen to collide with the
displayed object. E.g., Marti ,r,r 31-33, 36-38, Fig. 4. We also agree that
Hunter teaches customizing a visual representation of a user. Hunter ,r,r 42-
43.
We are not persuaded by Appellants' argument that Marti's teaching
is not a gesture. During prosecution, a claim term is to be given its broadest
reasonable interpretation consistent with the Specification, as it would be
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Application 12/475,297
interpreted by one of ordinary skill in the art. See In re Am. Acad. of Sci.
Tech. Ctr., 367 F.3d 1359, 1364 (Fed. Cir. 2004). Appellants' Specification
broadly describes a "gesture" as "compris[ing] a motion or pose by a user
that may be captured as image data and parsed for meaning." Spec. ,r 90.
Thus, Marti's teaching of a user moving her hand to a specific location in
physical space (i.e., where the corresponding displayed representation of the
user's hand collides with a displayed object) comprises a gesture (i.e., a
motion that can be captured as image data and parsed for meaning ( e.g., a
hand moving to a specific location in physical space)). See Marti ,r,r 31-33,
36-38, Figs. IA, IB, 4; Spec. ,I 90.
Furthermore, Appellants' Specification discloses that a user's motion
in physical space based on interaction with an object in display space can
constitute a "gesture." See Spec. ,r 33. Specifically, Appellants'
Specification discloses that:
The system may identify the user's hand gesture for movement
of a tab, where the user's hand in the physical space is virtually
aligned with a tab in the application space. The gesture,
including a pause, a grabbing motion, and then a sweep of the
hand to the left, may be interpreted as the selection of a tab, and
then moving it out of the way to open the next tab.
Id. ( emphasis added). Thus, our broad reasonable interpretation of "gesture"
is appropriate here. See In re ICON Health & Fitness, Inc., 496 F.3d 1374,
1379 (Fed. Cir. 2007) ("[A]s applicants may amend claims to narrow their
scope, a broad construction during prosecution creates no unfairness to the
applicant or patentee."). In addition, we find Appellants' argument that
Marti's teaching of a collision is not performed in physical space unavailing.
As discussed above, Marti teaches that the user moves her hand to a specific
location in physical space (i.e., behind the device) to select a displayed
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object for further action. See Marti ,r,r 31-33, 36-38, Figs. IA, IB, 4; see
also Spec. ,r 33.
Lastly, we are not persuaded by Appellants' argument that Marti's
gesture does not concern a user's wish to "customize," as claimed, because
Marti teaches "manipulating" a displayed object, rather than "customizing" a
body part of a visual representation. App. Br. 12. According to Appellants,
Marti teaches manipulating ( e.g., "deforming, bending, stretching,
compressing, squeezing, [and] pinching") a displayed object "without
actually deforming or changing the shape of the object ... to customize the
object." Id. at 13. Appellants argue that "[t]he 'squeezing' and 'pinching'
gestures taught by Marti are manipulation gestures for grabbing the object[,
and that] nothing in the teachings of Marti suggest that the ... object is
deformed as a result of any type of such manipulation." Reply Br. 2; see
also id. at 3 ( quoting Marti ,r 41) ( disclosing that a "modification of an
object may include a change in its location (lifting or turning) without there
being an actual deformation or change in shape of the object").
Rather, we agree with the Examiner that Marti teaches that at least
some of its manipulations (i.e., second modification gestures) deform or
change the shape of the displayed object, e.g., "deforming, bending,
stretching, compressing, squeezing, [or] pinching." App. Br. 11, 13 (citing
Marti ,r,r 32, 41); Adv. Act. 2. Appellants' arguments to the contrary ignore
Marti's clear teachings and are unsupported by record evidence. Id.; see
also In re Pearson, 494 F.2d 1399, 1405 (CCPA 1974) ("Attorney's
argument in a brief cannot take the place of evidence."); 37 C.F.R.
§ 4I.37(c)(l)(iv).
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(2) Modifying a Body Part
Appellants argue that the combination of Marti and Hunter does not
teach or suggest
modifying a dimension of size of a body part of the
skeletal or mesh model of the user that the user wishes to
customize relative to a dimension of size of another body part of
the skeletal or mesh model of the user based on a physical
characteristic of the visual representation of the user identifying
the body part of the skeletal or mesh model the user wishes to
customize,
as recited in independent claim 1, and similarly recited in independent
claims 14 and 23. App. Br. 13-14; Reply Br. 2-5. As above, Appellants
argue that Marti only teaches "manipulating objects in ... display space
without actually deforming or changing the shape of the object being
manipulated to customize the object." App. Br. 13.
As to Hunter, Appellants argue "Hunter teaches modifying the length
of joints of a skeletal model so that it 'surround[s] the entire desired object
in the digital image.'" App. Br. 13-14 (quoting Hunter ,r 29). In other
words, "Hunter's teachings for elongating, shrinking, or changing the angles
of the rods and joints is for purposes of better superimposing the skeleton on
the image of the user," according to Appellants. Id. at 14; see also Reply
Br. 4 (citing Hunter ,r 42) (arguing Hunter teaches that "parameters and
dimensions can be changed, for instance, the length of the legs can be
changed and the waist of the customized character can be cinched," but that
"such manipulations of the skeleton are for purposes of better matching the
skeleton to the digital image of the object or person"). In addition,
Appellants argue that "Hunter does not further suggest customizing
dimensions of size of body parts relative to other body parts to customize the
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visual representation and certainly does not suggest doing so in response to a
second modification gesture as claimed." App. Br. 14; see also Reply Br. 4--
5.
Lastly, Appellants argue that Hunter does not teach or suggest
modification gestures, but instead teaches clicking and dragging "a portion
of the customized character (such as the arm) into a new position to change
the length and position of the arm." App. Br. 14 (citing Hunter ,r 42).
According to Appellants, "Hunter's 'click and drag' modification does not
teach or suggest modifying 'based on a physical characteristic of the visual
representation of the user identifying the body part of the skeletal or mesh
model the user wishes to customize."' App. Br. 14; see also Reply Br. 4
( citing Hunter ,r 29).
The Examiner finds, and we agree, that the combination of Marti and
Hunter teaches or suggests the disputed limitation. Ans. 10-20; Final Act.
3-5. More specifically, the Examiner finds that Marti teaches customizing a
visual representation of an object using a user's gestures in the physical
space, and Hunter teaches customizing a visual representation of a user.
Ans. 10. As we discussed above, we agree with the Examiner's findings that
Marti teaches customizing a visual representation of an object using gestures
in the physical space. See Marti ,r,r 31-33, 36-38, Fig. 4. We also agree
with the Examiner's findings that Hunter teaches customizing a visual
representation of a user. See, e.g., Ans. 16 ( citing Hunter ,r 42); Hunter ,r 42
("The user can 'click and drag' a portion of the customized character, such
as the arm, into a new position. Additionally, parameters and dimensions can
be changed, for instance, the length of the legs can be changed and the waist
of the customized character can be cinched."). And, we agree with the
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Examiner that the combined teachings of Marti and Hunter teach the
disputed limitation. See Ans. 10-16 (citing Marti ,r,r 31-33, 36-38, Fig. 4;
Hunter ,r,r 42--43).
Appellants incorrectly focus on the references individually rather than
persuasively addressing their combined teachings. See In re Keller, 642
F.2d 413,425 (CCPA 1981) (finding the relevant inquiry is whether the
claimed subject matter would have been obvious to those of ordinary skill in
the art in light of the combined teachings of the references). We are not
persuaded by Appellants' argument that Hunter does not teach customizing
dimensions of size of body parts relative to other body parts (i.e., one arm
cannot be made longer than the other). Reply Br. 3--4 (citing Hunter ,r 42).
Rather, Hunter clearly teaches that, for example, "the lengths of the legs can
be changed" relative to the rest of the body, which teaches modifying a
dimension of size of a body part ( e.g., legs) relative to a dimension of size of
another body part (e.g., the remaining portions of the body, such as the waist
or arms). Hunter ,r 42.
Lastly, we find Appellants' arguments that Hunter has a different
purpose unavailing. Rather, "[a] reference may be read for all that it
teaches, including uses beyond its primary purpose." See In re Mouttet, 686
F.3d 1322, 1331 (Fed. Cir. 2012); EWP Corp. v. Reliance Universal Inc.,
755 F.2d 898, 907 (Fed. Cir. 1985) ("A reference must be considered for
everything it teaches by way of technology and is not limited to the
particular invention it is describing and attempting to protect.").
(3) Combining Marti and Hunter
Appellants argue that "there is no reasonable rationale for the
[E]xaminer's conclusion that it would have been obvious to one skilled in
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the art to" have combined Hunter's relevant teachings with Marti's
teachings. App. Br. 14. Appellants argue that "[t]here is certainly no
teachings by Marti that would suggest imaging an entire person ... and
putting that person in the display space." Id. at 14--15. Appellants also
argue that "[n]o teachings in Marti and Hunter taken together suggest
manipulating or modifying a body part of the visual representation through
'deforming, bending, stretching, compressing, squeezing, pinching' or any
other form of manipulation."' Id. at 15. Appellants also argue that "there is
absolutely no support or rationale for the [E]xaminer's allegation that one
skilled in the art would modify one body part relative to another body part
by substituting a gesture input method for the mouse input method taught by
Hunter." Id.
We find Appellants' arguments unpersuasive. The Examiner provides
"articulated reasoning with some rational underpinning to support the legal
conclusion of obviousness." In re Kahn, 441 F.3d 977, 988 (Fed. Cir. 2006).
For example, the Examiner concludes that a person of ordinary skill in the
art would have found it obvious to combine Hunter's dimension modeling of
a body part with Marti's manipulations of non-user objects to also modify
the representations of the user's visual representation, using a known method
(i.e. the gestures for object manipulation taught in Marti). Final Act. 5; see
also KSR Int'! Co. v. Teleflex Inc., 550 U.S. 398,418 (2007) ("[T]he
[obviousness] analysis need not seek out precise teachings directed to the
specific subject matter of the challenged claim, for a court can take account
of the inferences and creative steps that a person of ordinary skill in the art
would employ."). The Examiner also finds, and we agree, that "pointing and
dragging with a mouse is a well-known substitute in a gesture based
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system." Ans. 19; see also KSR, 550 U.S. at 417 ("If a person of ordinary
skill can implement a predictable variation, § 103 likely bars its
patentability."). We agree with the Examiner that "Hunter's teaching of
manipulating the joints and rods in the 3D representation of the avatar can be
easily adapted within Marti's gesture based manipulation system." Ans. 19-
20. Lastly, Appellants' argument that the Examiner uses impermissible
hindsight largely is premised on a lack of articulated reasoning to combine
the references, and thus, we also find this argument unpersuasive.
CONCLUSION
Based on our reasoning above, we sustain the Examiner's rejection of
independent claims 1, 14, and 23, as well as dependent claims 2-5, 7-10, 12,
13, 15-19, 21, 22, 24, and 25, as Appellants do not provide separate
arguments for their patentability.
DECISION
We affirm the Examiner's decision rejecting claims 1-5, 7-10, 12-19,
and 21-25.
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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