10540189 (P.T.A.B. Sep. 24, 2012)

Ex Parte Tu et al

Patent Trial and Appeal BoardSep 24, 2012

10540189 (P.T.A.B. Sep. 24, 2012)

UNITED STATES PATENT AND TRADEMARK OFFICE ________________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ________________ Ex parte JIAWEN TU, XIAOLING SHAO, and LEI FENG ________________ Appeal 2010-003572 Application 10/540,189 Technology Center 2600 ________________ Before SCOTT R. BOALICK, BRUCE R. WINSOR, and ANDREW CALDWELL, Administrative Patent Judges. CALDWELL, Administrative Patent Judge. DECISION ON APPEAL SUMMARY Appellants appeal under 35 U.S.C. §§ 6(b) and 134 from the Examiner’s final rejection of claims 15-28. Claims 1-14 are canceled. We affirm. STATEMENT OF THE CASE Appellants describe the present invention as an input device that gives users more flexibility and convenience by allowing them to move the input Appeal 2010-003572 Application 10/540,189 2 device in a three-dimensional space without requiring any flat surface. The input device includes a motion detector sensor that generates three- dimensional motion data associated with movement of the input device. The device wirelessly transmits the motion data to a computer, which derives a distance and direction of the movement of the input device in a two- dimensional plane based on the motion data and then moves a cursor to a corresponding position. Abstract. Independent claim 15 is representative1 and is shown below with key disputed limitations emphasized: 1. An input device, comprising: a motion detection sensor that is configured to generate three- dimensional (3D) motion data on first, second and third axes, associated with 3D movement of the input device; means for transmitting the motion data to a computer; means for causing the computer to derive a distance and direction of the movement of the input device in a two-dimensional (2D) plane based on the motion data on the first and second axes; means for causing the computer to determine whether the motion data on the third axis is greater than a first predetermined value; and means for causing the computer to move a cursor to a corresponding position based on the distance and direction derived in the 2D plane, upon the computer determining the motion data on the third axis is greater than the first predetermined value. 1 Appellants argue claims 15, 16, 19, 22, 23, and 26 together as a group. See Supp. Br. 2-7. Accordingly, we select independent claim 15 as representative of the group. Appeal 2010-003572 Application 10/540,189 3 THE REJECTIONS Claims 15, 16, 19, 22, 23, and 26 are rejected under 35 U.S.C. § 102(b) as being anticipated by Glynn (US 5,181,181; Jan. 19, 1993).2 Ans. 3-4, 7-9. Claims 17, 18, 20, 21, 24, 25, 27, and 28 are rejected under 35 U.S.C. § 103(a) as being obvious over Glynn in view of Bartlett (US 6,347,290 B1; Feb. 12, 2002). Ans. 4-6, 9. THE ANTICIPATION REJECTION ARGUMENTS The Examiner finds that Glynn anticipates claim 15. Ans. 3-4, 7-9. Appellants argue that Glynn does not teach an input device including means for causing the computer to move a cursor to a corresponding position based on the distance and direction derived in the 2D plane, upon the computer determining the motion data on the third axis is greater than the first predetermined value. Supp. Br. 2-7. Only those arguments actually made by Appellants have been considered in this decision. Arguments that Appellants did not make in the Briefs have not been considered and are deemed to be waived. See 37 C.F.R. § 41.37(c)(1)(vii) (2010). 2 Rather than repeat the Examiner’s positions and Appellants’ arguments in their entirety, we refer to the following documents for their respective details: the Corrected Argument Section of Appeal Brief (Supp. Br.) filed July 7, 2009; the Appeal Brief (App. Br.) filed May 5, 2009; and the Examiner’s Answer (Ans.) mailed October 15, 2009. The arguments in the Appeal Brief were superseded by those presented in the Corrected Argument Section. Appeal 2010-003572 Application 10/540,189 4 ISSUE Does Glynn disclose an input device including means for causing the computer to move a cursor to a corresponding position based on the distance and direction derived in the 2D plane, upon the computer determining the motion data on the third axis is greater than the first predetermined value? ANALYSIS Appellants argue that Glynn does not teach an input device including means for causing the computer to move a cursor to a corresponding position based on the distance and direction derived in the 2D plane, upon the computer determining the motion data on the third axis is greater than the first predetermined value. Supp. Br. 2-7. This argument is based on a number of individual contentions, addressed below. First, Appellants contend while the input device of the current invention recognizes three-dimensional movement, it does not do so with an intent to move a three-dimensional cursor or in any way interact with a computer representation in three-dimensional space. Supp. Br. 4. In other words, Appellants contend that their invention solves a different problem than Glynn. Arguments that alleged anticipatory prior art is not recognized as solving the problem solved by the claimed invention are not germane to a rejection under 35 U.S.C. § 102. Twin Disc, Inc. v. United States, 231 USPQ 417, 424 (Cl. Ct. 1986). Since claim 15 was rejected as being anticipated by Glynn, we are not persuaded that Appellants have identified error in the rejection by stating that their invention solves a different problem. Appeal 2010-003572 Application 10/540,189 5 Second, Appellants present a number of contentions regarding the effect of the meaning of the term “upon” in claim 15. Appellants are essentially arguing that the term “upon” creates a causal relationship between the determination that motion data on the third axis is greater than the first predetermined value and the resulting movement of a cursor. For example, Appellants contend that the language of claim 15 requires that “the corresponding computer cursor movement occurs only if ‘the motion data on the third axis is greater than a first predetermined value.’” Supp. Br. 3 (emphasis added). Appellants also state that the invention is directed to a system where movement in a two-dimensional plane is utilized only if movement in a third dimension exceeds a threshold. Id. at 4. Similarly, Appellants contend that that detected distance in the 2D plane does not result in any cursor movement unless there is detected sufficient third axis movement. Id. at 5. Appellants also contend that Glynn not only lacks the feature of claim 15 where detected z-dimension motion acts as a trigger, but in fact teaches away.3 Id. Finally, Appellants state that, as recited in claim 15, the corresponding computer cursor movement occurs only if “the motion data on the third axis is greater than the first predetermined value.” Id. at 6. The language of claim 15 does not recite that computer cursor movement occurs only if the motion data on the third axis is greater than a first predetermined value. Nor does claim 15 recite language to the effect that computer cursor movement occurs in response to the motion data on the 3 Arguments that alleged anticipatory prior art teaches away from the claimed invention are not germane to a rejection under 35 U.S.C. § 102. Twin Disc, 231 USPQ at 424. Although Appellants use the phrase “teaches away,” we will therefore treat Appellants’ use of the phrase as an argument that Glynn does not teach the claimed invention. Appeal 2010-003572 Application 10/540,189 6 third axis being greater than a first predetermined value. Claim 15 merely requires “causing the computer to move a cursor to a corresponding position based on the distance and direction derived in the 2D plane, upon the computer determining the motion data on the third axis is greater than the first predetermined value” (emphasis added). “Upon” may be defined as “immediately or very soon after” or “on the occasion of.” THE RANDOM HOUSE DICTIONARY OF THE ENGLISH LANGUAGE 2093 (2d ed. 1987). The former definition describes a relationship in time while the latter may describe either a time-related or a causal relationship. Giving claim language its broadest reasonable interpretation in light of the Specification, In re Morris, 127 F.3d 1048, 1054 (Fed. Cir. 1997), we construe “upon” to have its time-related definition of “immediately or very soon after,” and as not preluding also moving the cursor before determining the motion data on the third axis is greater than the first predetermined value. Since Appellants’ contentions regarding the meaning of “upon” are not consistent with the broadest reasonable interpretation of claim 15, we are not persuaded of error in the rejection. Third, Appellants contend that Glynn does not teach determining that the motion data on the third axis is greater than the first predetermined value. Supp. Br. 4-5. Appellants explain that Glynn intends the threshold to be compared to a combination of signals in various dimensions, as the types of errors to be compensated for are not intended to be limited to a threshold comparison of motion data of one axis alone. See Supp. Br. 5. In other words, Appellants argue that Glynn teaches a comparison of a vector sum of the motion data to a common threshold as opposed to making the comparison on a per axis basis. Glynn describes how three-dimensional Appeal 2010-003572 Application 10/540,189 7 motion values, or signals, are continuously computed based upon the digitized sensor signals. Glynn col. 7, ll. 19-27. The Examiner points to a section of Glynn that explains how a threshold level is established for the motion signals above which the signals are attributable to operator movements of the mouse. Ans. 3 (citing Glynn col. 7, ll. 44-50). The purpose of the threshold level is to reduce or eliminate errors that may be induced by, among other things, the earth’s rotational effects. Glynn col. 7, ll. 46-50. Glynn describes how the system compensates the sensor data for the tangential velocities of the X, Y, and Z axis translational sensors. Id. at col. 10, ll. 33-36. Glynn also describes how the system compensates for the force of gravity. Id. at col. 9, ll. 61-67. Given that the X, Y, and Z axes of Glynn’s pointing device may be offset from the earth’s, basic mechanics require a system to have a threshold per axis in order to properly correct for the earth’s rotational effects and/or gravity. We are therefore unpersuaded by Appellants’ contention that Glynn does not teach determining that the motion data on the third axis is greater than the first predetermined value. Since Appellants’ arguments with respect to claim 15 are not persuasive, we sustain the rejection of representative claim 15 and claims 16, 19,4 22, 23, and 26, which fall with claim 15. 4 We note that claim 19 recites “[c]omputer-readable media tangibly embodying a program. . . .” In the event of further prosecution of claim 19, or claims in similar form, we leave to the Examiner to ascertain whether claim 19 is directed to statutory subject matter under 35 U.S.C. § 101. See In re Nuijten, 500 F.3d 1346, 1357 (Fed. Cir. 2007). Appeal 2010-003572 Application 10/540,189 8 THE OBVIOUSNESS REJECTION Likewise, we will sustain the Examiner’s obviousness rejection of claims 17, 18, 20, 21, 24, 25, 27, and 28 over Glynn in view of Bartlett. Although Appellants nominally argue these claims separately, Appellants merely state that Bartlett fails to remedy the deficiencies identified in Glynn with respect to claim 15. Supp. Br. 7-8. Since we are not persuaded that Appellants have identified error in the rejection of claim 15, we are likewise not persuaded that Appellants have identified error in the rejection of claims 17, 18, 20, 21, 24, 25, 27, and 28.5 We therefore sustain the rejection. CONCLUSION Appellants have not shown that the Examiner erred in rejecting claims 15-28 under 35 U.S.C. §§ 102 and 103. DECISION The Examiner’s decision rejecting claims 15-28 under 35 U.S.C. §§ 102 and 103 is affirmed. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a)(1). See 37 C.F.R. § 1.136(a)(1)(iv) (2010). AFFIRMED babc 5 Claim 28 appears to be a duplicate of claim 21. We leave resolution of this matter to the Examiner and Appellants. Notice of References Cited Application/Control No. 10/540,189 Applicant(s)/Patent Under Patent Jiawen Tu et al. Appeal No. 2010-003572 Examiner Allison Walthall Art Unit 2600 Page 1 of 1 U.S. PATENT DOCUMENTS * Document Number Country Code-Number-Kind Code Date MM-YYYY Name Classification A US- B US- C US- D US- E US- F US- G US- H US- I US- J US- K US- L US- M US- FOREIGN PATENT DOCUMENTS * Document Number Country Code-Number-Kind Code Date MM-YYYY Country Name Classification N O P Q R S T NON-PATENT DOCUMENTS * Include as applicable: Author, Title Date, Publisher, Edition or Volume, Pertinent Pages) U THE RANDOM HOUSE DICTIONARY OF THE ENGLISH LANGUAGE 2093 (2d ed. 1987). V W X *A copy of this reference is not being furnished with this Office action. (See MPEP § 707.05(a).) Dates in MM-YYYY format are publication dates. Classifications may be US or foreign. U.S. Patent and Trademark Office PTO-892 (Rev. 01-2001) Notice of References Cited Part of Paper No.