Ex Parte Shintani

Patent Trial and Appeal Board

Jun 28, 2016

13101481 (P.T.A.B. Jun. 28, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
13/101,481 05/05/2011 Peter Shintani
36738 7590 06/30/2016
ROGITZ & AS SOCIA TES
750B STREET
SUITE 3120
SAN DIEGO, CA 92101
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.
201003711.01 5095
EXAMINER
VU, NGOC YEN T
ART UNIT PAPER NUMBER
2663
NOTIFICATION DATE DELIVERY MODE
06/30/2016 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):
Noelle@rogitz.com
eofficeaction@appcoll.com
J ohn@rogitz.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte PETER SHINTANI
Appeal2014-003713
Application 13/101,481
Technology Center 2600
Before IRVINE. BRANCH, JON M. JURGOV AN, and
ADAM J. PYONIN, Administrative Patent Judges.
BRANCH, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellant appeals under 35 U.S.C. § 134(a) from a rejection of claims
1-5, 7-13, and 15-21. We have jurisdiction under 35 U.S.C. § 6(b).
We affirm.
Appeal2014-003713
Application 13/101,481
CLAIMED SUBJECT MATTER
The claims are directed to tailoring audio video output for viewer
position. Spec., Abstract.
Claim 13, reproduced below, is illustrative of the claimed subject
matter:
13. Method comprising:
receiving viewer location information from a camera, the
location information representing a relative position of the
viewer with respect to an audio video display apparatus including
a video display and at least one audio speaker, the relative
location being an elevation of the viewer with respect to the
audio video display device; and
responsive to the viewer location information, establishing
a display parameter of the video display.
REJECTIONS
Claims 1-5, 13, and 15-17 stand rejected under pre-AIA 35 U.S.C.
§ 103(a) as unpatentable over Freeman (US 2008/0130923 Al; pub. June 5,
2008) and Demos (US 2009/0201309; pub. Aug. 13, 2009). Ans. 2-5. 1
Claims 1, 4, 5, 7, 13, and 15-17 stand rejected under pre-AIA 35
U.S.C. § 103(a) as being unpatentable over Ball (US 2007/0011196 Al; pub.
Jan. 11, 2007) and Demos. Ans. 5-8.
Claims 8, 9, and 12 stand rejected under pre-AIA 35 U.S.C. § 103(a)
as unpatentable over Freeman, Demos, and Pluvinage (US 7, 181,297 B 1, iss.
Feb. 20, 2007). Ans. 8-10.
Claims 10, 11, and 12 stand rejected under pre-AIA 35 U.S.C.
§ 103(a) as unpatentable over Freeman, Demos, and Rabb (US
2006/0280338 Al, Dec. 14, 2006). Ans. 10-11.
1 Examiner's Answer mailed November 7, 2013.
2
Appeal2014-003713
Application 13/101,481
Claims 18-21 stand rejected under pre-AIA 35 U.S.C. § 103(a) as
unpatentable over Freeman, Pluvinage, and Honda (US 2011/0175917 Al;
pub. July 21, 2011). Ans. 11-14.
OPINION
We have reviewed the Examiner's grounds of rejection in the Final
Action ("Final Act.," mailed Aug. 23, 2013) and Examiner's Answer
("Ans.," mailed Nov. 7, 2013), Appellant's arguments in the Appeal Brief
("App. Br.," filed Sept. 2, 1013), and Appellant's arguments in the Reply
Brief ("Reply Br.," filed December 18, 2013). We are unpersuaded of error
for the reasons stated by the Examiner. Ans. 2-16. We include the
following for emphasis.
We first note that Appellant does not present an argument as to the
Examiner's rejections of claims 1 3-5, and 7-12. See App. Br. 4--12; Reply
Br. 1-3. Accordingly, we summarily affirm the Examiner's rejections of
claims 1 3-5, and 7-12.
Appellant argues the Examiner's rejection of claim 13 over Freeman
and Demos is in error, because Freeman does not teach or suggest altering a
display parameter based on elevation of the viewer. Appellant argues that
Freeman does not mention "elevation" or "height," and "appears to envision
a two-dimensional environment consisting only of range and angle, but not
elevation." App. Br. 6. See also Reply Br. 2.
We are unpersuaded of error.
We do not find persuasive of error Appellant's contention that,
because Freemen does not mention "elevation" as a component of
"position," Freeman's position does not include "elevation." App. Br. 6.
3
Appeal2014-003713
Application 13/101,481
Freeman discloses (il 18) that "[w]hen the listener or a portion of interest of
the listener has moved, a determination is made at block 210 as to whether
the listener has disabled the dynamic control of the audio playback."
Freeman's non-mention of elevation as a component of detecting a user's
movement does not constrain Freeman's "environment" to one that does not
include elevation. We further note Freeman's reference (i123 (also cited by
the Examiner (Ans. 2))) to a user's facial "orientation," which belies
Appellant's argument that Freeman is constrained to a two-dimensional
world. We therefore sustain the Examiner's rejection of claim 13 over
Freeman and Demos. We also sustain the Examiner's rejection of claim 2
over Freeman and Demos, which Appellant argues on the same grounds.
See App. Br. 4---6.
Appellant makes a similar argument against the Examiner's rejection
of claim 13 based on Ball and Demos. App. Br. 9--11. Ball discloses (i125)
a system "capable of dynamically changing the way it renders media based
on the changing locations of objects within the area where video is displayed
or audio is played." Ball specifically mentions identifying the location of a
person's head or ears using triangulation or even other facial features. Ball,
i146.
We are not persuaded that Ball's non-mention of "elevation" as a
component of location reduces Ball's world to a two-dimensional one, as
Appellant argues. App. Br. 9--11. Using facial features to identify a
person's ears belies Appellant's assertion that Ball "appears to envision a
two-dimensional environment consisting only of range and angle, but not
elevation." Id. 9. We therefore sustain the Examiner's rejection of claim 13
over Ball and Demos.
4
Appeal2014-003713
Application 13/101,481
Independent claim 18 includes recognizing the viewer as being
elderly. The Examiner rejects claim 18 as unpatentable over the
combination of Freeman, Pluvinage, and Honda. Ans. 12-13, 16. The
Examiner cites Freeman's facial recognition feature for recognizing a person
as elderly (see Ans. 16 (citing Freeman, i-fi-f 17 and 23)) together with
Honda's limiting the menu display for improving usability for the elderly
(id. (citing Honda, i1396)).
Appellant argues that the Examiner's finding that Freeman's facial
recognition includes identifying a person as elderly is a "contrivance."
Reply Br. 3. Appellant also argues that the Examiner has committed a
"fallacy" by concluding it would have been obvious based on the combined
teachings of Freeman and Honda to recognize a person as elderly, then
prevent the person from changing display settings. Id. Appellant argues that
"the only way it can become obvious is by doing what the conferees have
done, namely, use the present claims as templates to reconstruct the
references to locate teachings that are not there to concoct rationales that are
absent from the evidence." Id.
We are not persuaded of error.
Appellant does not present sufficient persuasive argument or evidence
to convince us that Freeman's "facial recognition" does not include an
ability to recognize a person's relative age (i.e., recognize a persona as being
"elderly"). It is well settled that arguments of counsel cannot take the place
of factually supported objective evidence. See, e.g., In re Huang, 100 F .3d
135, 139--40 (Fed. Cir. 1996); In re De Blauwe, 736 F.2d 699, 705 (Fed. Cir.
1984).
5
Appeal2014-003713
Application 13/101,481
Moreover, Appellant does not persuasively rebut the Examiner's
articulated reason with some rational underpinning (see KSR Int 'l Co. v.
Teleflex, Inc., 550 U.S. 398, 418 (2007) (quoting In re Kahn, 441F.3d977,
988 (Fed. Cir. 2006)) that one skilled in the art would have found it obvious
to combine the teachings of Freeman, Pluvinage, and Honda for the purpose
of improving the usability of the AV device. Ans. 13. Appellant's naked
assertion that "the only way it can become obvious" is through use of
Appellant's claims as a template is unconvincing.
Accordingly, we sustain the Examiner's rejection of claim 18.
We also sustain the Examiner's rejections of the remaining claims,
which Appellant does not separately argue.
DECISION
We sustain the Examiner's decision to reject claims 1-5, 7-13, and
15-21.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 1.136(a)(l )(iv).
AFFIRMED
6