Ex Parte Trethewey et al

Patent Trial and Appeal Board

Mar 12, 2018

13608356 (P.T.A.B. Mar. 12, 2018)

United States Patent and Trademark Office
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
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
13/608,356 09/10/2012 James R. Trethewey P45985 1082
104333 7590 03/14/2018
International IP Law Group, P.L.L.C.
13231 Champion Forest Drive
Suite 410
Houston, TX 77069
EXAMINER
MA, TIZE
ART UNIT PAPER NUMBER
2613
NOTIFICATION DATE DELIVERY MODE
03/14/2018 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):
eofficeaction @ appcoll.com
Intel_Docketing @ iiplg.com
inteldocs_docketing @ cpaglobal. com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte JAMES R. TRETHEWEY, DAVID M. PUTZOLU, and
KELLY HAMMOND
Appeal 2017-001581
Application 13/608,3561
Technology Center 2600
Before ST. JOHN COURTENAY III, JAMES W. DEJMEK, and
JOHN D. HAMANN, Administrative Patent Judges.
DEJMEK, Administrative Patent Judge.
DECISION ON APPEAL
Appellants appeal under 35 U.S.C. § 134(a) from a Final Rejection of
claims 1—15 and 17—30. Appellants have canceled claim 16. App. Br. 27.
We have jurisdiction over the remaining pending claims under 35 U.S.C.
§ 6(b).
We affirm-in-part.
1 Appellants identify Intel Corporation as the real party in interest. App.
Br. 2.
Appeal 2017-001581
Application 13/608,356
STATEMENT OF THE CASE
Introduction
Appellants’ disclosed and claimed invention is directed to sensor
controllers and, more particularly, “to providing display articulation data
from a sensor controller to an operating system.” Spec. 11. According to
the Specification, the disclosed invention provides support for detecting
articulation states of a display in relation to the base of a device—
particularly devices having a folding or clamshell design—when the device
is in a non-tablet or non-slate orientation. Spec. 12.
Claim 1 is exemplary of the subject matter on appeal and is
reproduced below with the disputed limitations emphasized in italics'.
1. A system, comprising:
a sensor controller communicatively coupled to a plurality
of sensors comprising an articulation detection hardware to
gather display articulation data and an internally packaged
sensor, the sensor controller to generate formatted display
articulation data and provide the formatted display articulation
data to a driver, wherein the driver is executed by an operating
system to enable the sensor controller to communicate the
formatted display articulation data to an application executed by
the operating system.
The Examiner’s Rejections
1. Claims 1—8, 10-12, 15, 17—20, and 26—28 stand rejected under
pre-AIA 35 U.S.C. § 103(a) as being unpatentable over Nachman et al. (US
2012/0254878 Al; Oct. 4, 2012) (“Nachman”); Shimotono et al. (US
2008/0129666 Al; June 5, 2008) (“Shimotono”); Helmes et al. (US
2012/0081275 Al; Apr. 5, 2012) (“Helmes”); STMicroelectronics, Tilt
measurement using a low-g 3-axis accelerometer, Application Note AN
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Application 13/608,356
3182, 1—18 (Rev. 1, 04/2010) (“STMicroelectronics”); Kurt Seifert and
Oscar Camacho, Implementing Positioning Algorithms Using
Accelerometers, Application Note AN3397, 1—13 (Rev. 0, 02/2007)
(“Seifert”); and HobbyTronics, Accelerometer and Gyro Integration,
https://web.archive.Org/web/20120103014100/http://www.hobbytronics.co.u
k/accelerometer-gyro (last visited January 3, 2012) (“HobbyTronics”). Final
Act. 2—8.
2. Claim 9 stands rejected under pre-AIA 35 U.S.C. § 103(a) as
being unpatentable over Nachman, Shimotono, Helmes, STMicroelectronics,
Seifert, HobbyTronics, and Lu et al. (US 2007/0228164 Al; Oct. 4, 2007)
(“Lu”). Final Act. 8-9.
3. Claim 13 stands rejected under pre-AIA 35 U.S.C. § 103(a) as
being unpatentable over Nachman, Shimotono, Helmes, STMicroelectronics,
Seifert, HobbyTronics, and Cakir et al. (US 2005/0094887 Al; May 5, 2005)
(“Cakir”). Final Act. 9-11.
4. Claim 14 stands rejected under pre-AIA 35 U.S.C. § 103(a) as
being unpatentable over Nachman, Shimotono, Helmes, STMicroelectronics,
Seifert, HobbyTronics, Cakir, and Diard (US 2011/0161675 Al; June 30,
2011). Final Act. 11-13.
5. Claims 21 and 29 stand rejected under pre-AIA 35 U.S.C.
§ 103(a) as being unpatentable over Nachman, Shimotono, Helmes,
STMicroelectronics, Seifert, HobbyTronics, and Stevenson et al. (US
2009/0109126 Al; Apr. 30, 2009) (“Stevenson”). Final Act. 13-14.
6. Claims 22 and 30 stand rejected under pre-AIA 35 U.S.C.
§ 103(a) as being unpatentable over Nachman, Shimotono, Helmes,
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STMicroelectronics, Seifert, HobbyTronics, and Kristensson et al. (US
2008/0280641 Al; Nov. 13, 2008) (“Kristensson”). Final Act. 14—15.
7. Claims 23—25 stand rejected under pre-AIA 35 U.S.C. § 103(a)
as being unpatentable over Nachman, Shimotono, Helmes,
STMicroelectronics, Seifert, HobbyTronics, and Kobayashi (US
2013/0044335 Al; Feb. 21, 2013). Final Act. 15-17.
ANALYSIS2
Claims 1—15, 17—22, and 26—30
Appellants assert that Nachman, as relied on by the Examiner does not
teach “articulation detection hardware” and, therefore, cannot teach “display
articulation data.” App. Br. 13—14; Reply Br. 3^4. In particular, Appellants
dispute the Examiner’s finding that “data from the sensors, such as
accelerometers and light sensors” is articulation data because
“‘accelerometers and light sensors’ are not equivalent to articulation
detection hardware.” Reply Br. 4. Additionally, Appellants disagree with
the Examiner’s finding that because it can be used to determine position and
orientation of a display relative to a base, data from the sensors—such as
STMicroelectronics’ tri-axial accelerometer used for laptop lid open/close
detection—is articulation data. Reply Br. 4. Appellants argue the claimed
display articulation data “is not merely indicative of a laptop lid open/close
detection.” Reply Br. 4.
2 Throughout this Decision, we have considered the Appeal Brief, filed
June 17, 2016 (“App. Br.”); the Reply Brief, filed November 8, 2016
(“Reply Br.”); the Examiner’s Answer, mailed September 8, 2016 (“Ans.”);
and the Final Office Action, mailed November 17, 2015 (“Final Act.”), from
which this Appeal is taken.
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Any special meaning assigned to a term “must be sufficiently clear in
the specification that any departure from common usage would be so
understood by a person of experience in the field of the invention.”
Multiform Desiccants, Inc. v. Medzam, Ltd., 133 F.3d 1473, 1477 (Fed. Cir.
1998); see also Helmsderfer v. Bobrick Washroom Equip., Inc., 527 F.3d
1379, 1381 (Fed. Cir. 2008) (“A patentee may act as its own lexicographer
and assign to a term a unique definition that is different from its ordinary
and customary meaning; however, a patentee must clearly express that intent
in the written description.”). Absent an express intent to impart a novel
meaning to a claim term, the words take on the ordinary and customary
meanings attributed to them by those of ordinary skill in the art. Brookhill-
Wilk 1, LLC v. Intuitive Surgical, Inc., 334 F.3d 1294, 1298 (Fed. Cir. 2003)
(citation omitted).
Further, when construing claim terminology during prosecution before
the Office, claims are to be given their broadest reasonable interpretation
consistent with the Specification, reading claim language in light of the
Specification as it would be interpreted by one of ordinary skill in the art.
In re Am. Acad. ofSci. Tech. Ctr., 367 F.3d 1359, 1364 (Fed. Cir. 2004).
We are mindful, however, that limitations are not to be read into the claims
from the Specification. In re Van Geuns, 988 F.2d 1181, 1184 (Fed.
Cir. 1993).
Here, we find Appellants have acted as their own lexicographer
regarding the term “display articulation.” In particular, Appellants set forth
in the Specification that “the term ‘display articulation’ is used to refer to an
angular positioning and/or linear extension of a display in relation to a base
of the computing device.” Spec. 1 8. However, regarding the claim terms
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“display articulation data” and “articulation detection hardware,” Appellants
do not define these terms in the claims or Specification. Instead, Appellants
merely provide non-limiting descriptions of exemplary embodiments of
what may qualify as display articulation data or articulation detection
hardware. See Spec. ]Hf 17, 23.
In particular, the Specification sets forth: “display articulation data
may include a lid state indicator . . . [t]he lid state indicator may indicate if
the display device of a computing device is open or closed.” Spec. 117.
Additionally, articulation detection hardware may be “external hardware
connected to the sensor controller . . . [and sensors] may be internally
packaged or externally connected sensor hardware devices and may include,
for example, a magnetometer 204, a gyrometer 206, an accelerometer 208,
and any other suitable sensor.” Spec. 123.
Therefore, on this record, we are not persuaded the Examiner’s claim
interpretation is overly broad, unreasonable, or inconsistent with the
Specification.3 Accordingly, we agree with the Examiner (see Ans. 2—3)
that the claimed “articulation detection hardware to gather display
articulation data” is taught or suggested by the sensors described by
Nachman (e.g., accelerometer, gyroscope, light sensor), as further modified
by the teachings of STMicroelectronics (teaching the use of an
accelerometer for laptop lid open/close detection), and Seifert (using
accelerometers for positioning algorithms), in further combination with
HobbyTronics (teaching the use of gyrometers to calculate a tilt angle).
3 Because “applicants may amend claims to narrow their scope, a broad
construction during prosecution creates no unfairness to the applicant or
patentee.” In re ICON Health and Fitness, Inc., 496 F.3d 1374, 1379 (Fed.
Cir. 2007) (internal citation omitted).
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Appellants also assert Nachman fails to teach a sensor controller to
generate formatted display articulation data. App. Br. 12—13; Reply Br. 1—3.
In particular, Appellants argue Nachman “merely discloses ‘various virtual
sensors’” and that calculating a virtual sensor using data from a physical
sensor is not the same thing as formatting sensor data. App. Br. 12—13.
Further, Appellants contend formatted display articulation data “is defined
as display articulation data converted to ‘a generic data structure or format
compliant with a Human Interface Device (HID) specification promulgated
by the Universal Serial Bus Implementer’s Forum and recognized by the
operating system.’” App. Br. 13 (quoting Spec. 118).
As an initial matter, we note the Specification broadly describes
“[f]ormatting may comprise'1'’ the type of data conversion identified by
Appellants. Spec 118 (emphasis added). As the Examiner identifies,
Nachman describes the sensor hub processor as serving as an “intermediate
level processing agent” between the sensors and the application processor.
Nachman 117; see also Ans. 3^4. We agree with the Examiner that the
sensor hub processor that processes high level data in Nachman teaches or
suggests “a sensor controller to generate formatted display articulation data”
as claimed. Ans. 3^4.
Additionally, Appellants argue Shimotono does not teach “wherein
the driver is executed by an operating system to enable the sensor controller
to communicate the formatted display articulation data to an application
executed by the operating system.” App. Br. 15. Appellants assert
Shimotono does not describe a sensor controller or the communication of
any sensor data to a user application. App. Br. 15 (citing Shimotono,
Fig. 3).
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Nonobviousness cannot be established by attacking references
individually where, as here, the ground of unpatentability is based upon the
teachings of a combination of references. In re Keller, 642 F.2d 413, 426
(CCPA 1981).
Here, the Examiner finds, and we agree, Shimotono describes an
operating system supporting a user application and receiving data from a
plurality of drivers, including a driver associated with an acceleration sensor
(i.e., an accelerometer). See Shimotono 126, Fig. 3; Final Act. 4. In
particular, as shown in Figure 3 of Shimotono, an acceleration sensor (51)
provides data to embedded controller (49), which provides data to
acceleration sensor driver (109). Shimotono 126, Fig. 3. The acceleration
sensor driver is executed by the operating system (103). Shimotono 126.
Thus, the Examiner concludes, and we agree, it would have been obvious to
an ordinarily skilled artisan to modify the operating system in Nachman with
Shimotono’s operating system executing the driver to enable the sensor
controller to communicate formatted display articulation data to an
application to “achieve [] the predictable result of providing sensor data to
context aware applications.” Final Act. 4; see KSR Int’l Co. v. Teleflex Inc.,
550 U.S. 398, 416 (2007) (“The combination of familiar elements according
to known methods is likely to be obvious when it does no more than yield
predictable results.”).
For the reasons discussed supra, and based upon a preponderance of
the evidence, we are not persuaded the Examiner erred. Accordingly, we
sustain the Examiner’s rejection of claim 1. For similar reasons, we also
sustain the Examiner’s rejection of independent claims 7, 15, and 27, which
recite similar limitations and were not argued separately. See App. Br. 15.
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Additionally, we also sustain the Examiner’s rejection of claims 2—6, 8, 10—
12, 17—20, 26, and 28, which depend therefrom and were not argued
separately. See App. Br. 15. See 37 C.F.R. § 41.37(c)(l)(iv).
Regarding the Examiner’s rejections of dependent claims 9, 13, 14,
21, 22, 29, and 30, Appellants argue the additional references cited do not
cure the deficiencies alleged in the rejection of the independent claims. See
App. Br. 15—21. Because we do not find the Examiner’s rejection of the
independent claims to be in error, we are not persuaded of Examiner error by
Appellants’ arguments. Accordingly, we sustain the Examiner’s rejections
of claims 9, 13, 14, 21, 22, 29, and 30.
Claims 23—25
Claim 23 depends from claim 19, which depends from independent
claim 15, and recites “the user providing instructions as to whether to
combine the data [(i.e., data from the articulation detection hardware and
data from the internally packaged sensor)] in the sensor controller or in the
application.”
In rejecting claim 23, the Examiner finds Nachman discloses the user,
the sensor controller, and the application (Final Act. 15 (citing Nachman
127, Figs. 2, 3 A)), and explains Kobayashi teaches “the user may select the
module to perform the process.” Final Act. 15 (emphasis omitted).
Specifically, the Examiner finds Kobayashi provides a GUI to allow a user
to select a module to process printing activities. Ans. 5—6 (citing Kobayashi,
Fig. 24). The Examiner concludes it would have been obvious to one of
ordinary skill in the art “to have modified the location for combining the
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data disclosed in Nachman” as taught by Kobayashi to allow a user to
configure a system that best suits their needs. Final Act. 15—16.
Appellants argue neither Kobayashi nor the other cited prior art
references of record disclose modifying a location, or otherwise providing
instructions on whether to combine data from the articulation detection
hardware and the internally packaged sensor in the sensor controller or in the
application. App. Br. 21; Reply Br. 4—5. Instead, Appellants contend
Kobayashi is directed to allowing a user to determine where a print scaling
operation is to be performed. Reply Br. 4—5 (citing Kobayashi 1158).
Kobayashi is generally directed to a print control method and, in
particular, to (i) determining whether a process related to a print scaling
process is included in print settings; (ii) comparing the processing capacity
of an image forming apparatus (e.g., a printer) with the processing capacity
of an information processing apparatus (e.g., a computer); and
(iii) determining whether to perform the print scaling process in the image
forming apparatus or information processing apparatus based on the
comparison of processing capacity results. Kobayashi 114; see also
Kobayashi H 90-104, Fig. 13. Kobayashi also discloses allowing a user to
select a module where the scaling process should be performed. Kobayashi
1158, Fig. 24.
We are mindful that the test for obviousness is whether the
combination of references, taken as a whole, would have suggested the
patentee’s invention to a person having ordinary skill in the art. In re Merck
& Co., Inc., 800 F.2d 1091, 1097 (Fed. Cir. 1986). However, the Examiner
has not fully developed the record by providing sufficient persuasive
technical reasoning and evidence regarding how allowing a user to select
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where a printer scaling process occurs (as taught by Kobayashi), in
combination with the teaching of Nachman, would have taught or suggested
the claim limitation of “providing instructions as to whether to combine the
data in the sensor controller or in the application.”
For the reasons discussed supra, and constrained by the record before
us, we do not sustain the Examiner’s rejection of claim 23. For similar
reasons, we also do not sustain the Examiner’s rejection of claims 24 and 25,
which depend directly or indirectly from claim 23.4
DECISION
We affirm the Examiner’s decision rejecting claims 1—15, 17—22, and
26—30 under pre-AIA 35 U.S.C. § 103(a).
We reverse the Examiner’s decision rejecting claims 23—25 under pre-
AIA 35 U.S.C. § 103(a).
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). See
37C.F.R. §41.50(f)(2015).
AFFIRMED-IN-PART
4 We note claim 23 recites, inter alia, “the user providing instructions.”
However, there is no antecedent basis for “the user.” In the event of further
prosecution, we leave it to the Examiner to determine whether claim 23
comports with the requirements of pre-AIA 35 U.S.C. § 112, second
paragraph. Although the Board is authorized to reject claims under
37 C.F.R. § 41.50(b), no inference should be drawn when the Board elects
not to do so. See Manual of Patent Examining Procedure (MPEP) § 1213.02
(9th ed. Rev. 08.2017, Jan. 2018).
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