Ex Parte Van Veghel

Patent Trial and Appeal Board

Mar 29, 2017

12532647 (P.T.A.B. Mar. 29, 2017)

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.
12/532,647 09/23/2009 Marinus Johannes Gerdina Antonius Van Veghel 2007P00577WOUS 9526
24737 7590 03/31/2017
PTTTT TPS TNTFT T FfTTTAT PROPFRTY fr STANDARDS
EXAMINER
465 Columbus Avenue MCCORMACK, THOMAS S
Suite 340
Valhalla, NY 10595 ART UNIT PAPER NUMBER
2683
NOTIFICATION DATE DELIVERY MODE
03/31/2017 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):
marianne. fox @ philips, com
debbie.henn @philips .com
patti. demichele @ Philips, com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte MARINUS JOHANNES GERDINA ANTONIUS VAN VEGHEL1
Appeal 2016-004865
Application 12/532,647
Technology Center 2600
Before JEAN R. HOMERE, JON M. JURGOVAN, and
JOSEPH P. LENTIVECH, Administrative Patent Judges.
LENTIVECH, Administrative Patent Judge.
DECISION ON APPEAL
Appellant seeks our review under 35 U.S.C. § 134(a) of the
Examiner’s final rejection of claims 1, 3, and 5—13. Claims 2 and 4 have
been canceled. App. Br. 2. We have jurisdiction over the pending claims
under 35 U.S.C. § 6(b).
We reverse.
1 According to Appellant, the real party in interest is Koninklijke Philips
Electronics N.V. App. Br. 2.
Appeal 2016-004865
Application 12/532,647
STATEMENT OF THE CASE
Appellant’s Invention
Appellant’s invention generally relates to “devices used by humans to
control machines and in particular to passive communication devices.”
Spec. 1:2—3. Claim 1, which is illustrative, reads as follows (with some
paragraphing added):
1. A communication device for controlling a system, the
communication device comprising:
a reflecting element for composing a system control
command,
wherein the composed system control command is
comprised of light reflected by the reflecting element determined
by the changing shape of the reflecting element,
wherein the control command is determined by
determining geometric parameter(s) of the shape of the light
reflected and comparing the parameter(s) to a threshold value.
Rejection
Claims 1,3, and 5—13 stand rejected under 35 U.S.C. § 102(b) as
being anticipated by Pryor (US 2005/0276448 Al; published Dec. 15, 2005).
Final Act. 2—8.
Dispositive Issue on Appeal
Did the Examiner err by finding that Pryor discloses “wherein the
control command is determined by determining geometric parameter(s) of
the shape of the light reflected and comparing the parameter(s) to a threshold
value,” as recited in claim 1?
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Appeal 2016-004865
Application 12/532,647
ANALYSIS
Appellant argues Pryor fails to disclose “wherein the control
command is determined by determining geometric parameter(s) of the shape
of the light reflected and comparing the parameter(s) to a threshold value,”
as recited in claim 1. App. Br. 5—10; Reply Br. 2—8. In particular, Appellant
argues Pryor fails to disclose comparing a geometric parameter of the shape
of the reflected light to a threshold value, as required by claim 1. App.
Br. 7—8. According to Appellant:
Pryor teaches to use a camera to determine the location of a
finger from one end to the other of the strip to indicate a control
of value one to 10. Further Pryor teaches that a circular control
be used again to determine the location/position of a finger on
the circle, which position (e.g. 30 degrees) indicates a
corresponding value to a volume of a radio, for example. The
Final Office Action further indicates on page 8 that an angle is a
geometric parameter. Appellants agree. However, nothing in
Pryor teaches or suggests determining geometric parameters of a
shape AND comparing the parameter(s) to a threshold value.
App. Br. 7 (Emphasis omitted). Appellant further argues “Pryor does not
compare the parameter values to a threshold value, but only compares two
images to each other. Id.
We find Appellant’s argument persuasive. The Examiner finds Pryor
discloses the claimed comparison because “Pryor uses the image of light
reflected off of reflective material when it is unblocked and compares it to
an image of the light reflected when blocked in some area of the reflective
material to determine control commands” and, therefore, that “Pryor uses a
comparison to a threshold to determine a control command.” Ans. 8—9
(citing Pryor 1161). However, we agree with Appellant that Pryor fails to
disclose that the comparison includes comparing a parameter of a shape to a
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Appeal 2016-004865
Application 12/532,647
threshold parameter, as required by claim 1. Regarding the comparison,
Pryor merely discloses “with ease one can use the camera to sense a control
of value one to 10 from one end to the other of the strip in this way;” “which
angular position [of a block angular section of a circular control] the camera
is easily able to tell within 30 degrees or better;” and “[t]he one [of digital
retro-reflective squares 2070 shown in Figure 20B] covered up by the users
[sic] finger is the value desired.” Pryor 1161; see also Pryor, Fig. 20B. As
such, we are constrained by the record to not sustain the Examiner’s
rejection of claim 1; and claims 3 and 5—13 which recite corresponding
limitations.2
We do not reach Appellant’s further allegations of error because we
find the issue discussed above to be dispositive of the rejection of claim 1
and of claims 3 and 5—13.
DECISION
We reverse the Examiner’s rejection of claims 1, 3, and 5—13.
REVERSED
2 The Examiner’s findings regarding how the comparison could be made
(Ans. 9-11) are relevant to the question of obviousness under 35 U.S.C.
§ 103. We decline to exercise our authority under 37 C.F.R. § 41.50(b)
(2006) and enter a new ground of rejection of the appealed claims on the
above basis. We leave it to the Examiner to consider whether the claims are
unpatentable under 35 U.S.C. § 103 in view of the disclosure of Pryor and
enter any new ground(s) of rejection based thereon and any other
reference(s) as deemed appropriate. While the Board is authorized to reject
claims under 37 C.F.R. § 41.50(b), no inference should be drawn when the
Board does not do so. See MPEP § 1213.03.
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