Ex Parte VanceDownload PDFBoard of Patent Appeals and InterferencesMay 31, 201110709345 (B.P.A.I. May. 31, 2011) Copy Citation 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. 10/709,345 04/29/2004 Scott LaDell Vance PU04 0033US1.084 3344 24239 7590 06/01/2011 MOORE & VAN ALLEN PLLC P.O. BOX 13706 Research Triangle Park, NC 27709 EXAMINER HUANG, WEN WU ART UNIT PAPER NUMBER 2618 MAIL DATE DELIVERY MODE 06/01/2011 PAPER 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. PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________________ BEFORE THE BOARD OF PATENT APPEALS AND INTERFERENCES ____________________ Ex parte SCOTT LADELL VANCE ____________________ Appeal 2009-013570 Application 10/709,345 Technology Center 2600 ____________________ Before ALLEN R. MacDONALD, ROBERT E. NAPPI, and ERIC S. FRAHM, Administrative Patent Judges. FRAHM, Administrative Patent Judge. DECISION ON APPEAL Appeal 2009-013570 Application 10/709,345 2 STATEMENT OF THE CASE Introduction Appellant appeals under 35 U.S.C. § 134 from a final rejection of claims 1, 4, 5, 9-14, 22, 26-31, 33, 35-37, and 41-45.1 Claims 2, 3, 6-8, 15- 21, 23-25, 32, 34, 38-40, and 46-48 have been canceled. We have jurisdiction under 35 U.S.C. § 6(b). We affirm in part. 1 Claims 37 and 41-45 stand rejected under 35 U.S.C. § 103(a) (see Final Rej. 2-18). Although the Examiner states that these claims stand withdrawn as being directed to non-statutory subject matter (see Examiner Interview Summary Record mailed April 14, 2009 at 2; Ans. 2), once an Appeal Brief has been filed (as has been done in the instant case on January 5, 2009), the Examiner may withdraw a rejection, but not claims (see MPEP §§ 1207, 1207.02). Accordingly, the Examiner’s attempt to withdraw claims 37 and 41-45 by telephone on April 7, 2009 (see Examiner Interview Summary Record mailed April 14, 2009 at 2; Ans. 2), occurring after the filing of the Appeal Brief (filed January 5, 2009), is not binding. The Examiner does not have the authority to withdraw claims 37 and 41-45 (or any claims) as being directed to non-statutory subject matter, and Appellant has not canceled claims 37 and 41-45 as allowed under 37 CFR § 41.33(b)(1). In fact, Appellant disputes any alleged agreement being made as to the withdrawal of claims 37 and 41-45 (Reply Br. 2), notes these claims as pending (see App. Br. 1; Reply Br. 1), and responds to the pending rejection of these claims under § 103(a) on the merits (see generally App. Br. 5-15). In view of the foregoing, we consider claims 37 and 41-45 to be before us on appeal, and rejected as set forth in the Final Rejection (see the § 103(a) rejections at Final Rej. 2-18). Although the Examiner infers that claims 37 and 41-45 are withdrawn due to being directed to non-statutory subject matter (see Ans. 2), no new ground of rejection under § 101 has been made in the Answer (as permitted by 37 CFR § 41.39(a)(2)). Therefore, we do not consider whether claims 37 and 41-45 are directed to non-statutory subject matter in our decision herein. Appeal 2009-013570 Application 10/709,345 3 Exemplary Claims Exemplary independent claims 1 and 4 under appeal, read as follows: 1. A device for hands-free push-to-talk functionality, comprising: a hands-free push-to-talk sensor or switch including at least one of an air pressure sensitive switch, and a tilt sensor for sensing a change in a direction of force due to gravity on the tilt sensor when the tilt sensor is tilted more than a predetermined angle from a zero or normalized angle, wherein the hands-free push-to-talk sensor or switch is operable by at least one of the air pressure sensitive switch sensing a change in air pressure and the tilt sensor sensing a change in the direction of force due to gravity on the tilt sensor when the tilt sensor is tilted more than the predetermined angle from the zero or normalized angle; and means to control operation of a communications device in response to signals from the push-to-talk sensor or switch, wherein the push-to-talk sensor or switch comprises the tilt sensor, wherein a transmit mode of the communications device is activated in response to the tilt sensor being tilted more than the predetermined angle from the zero or normalized angle of the direction of force due to gravity for a predetermined time duration. 4. The device of claim 1, further comprising means for maintaining the communications device in the transmit mode in response to at least one of detecting a voice signal or the tilt sensor being tilted more than the predetermined angle after a selected time delay. The Examiner’s Rejections 1. The Examiner rejected claims 1, 12-14, 22, 26, 31, 33, 36, 37, and 41 as being unpatentable under 35 U.S.C. § 103(a) over the combination of Holmes (US 3,586,798), and Gardos (US 2004/0243416 A1). Appeal 2009-013570 Application 10/709,345 4 2. The Examiner rejected claims 4, 5, 27, and 42 as being unpatentable under 35 U.S.C. § 103(a) over the combination of Holmes, Gardos, and Lenz (US 5,101,504). 3. The Examiner rejected claims 9-11, 28-30, 35, and 43-45 as being unpatentable under 35 U.S.C. § 103(a) over the combination of Holmes, Gardos, Lenz, further in view of Brenig (US 4,426,733) and White (US 6,594,632 B1). The Examiner’s Findings In making each of the three rejections, supra, the Examiner relies upon (i) Holmes as teaching a hand-free push-to-talk sensor or switch operable by head action (i.e., titling), means to control a communication device in response to signals from the sensor or switch, and a transmit mode for the communication device being activated in response to the title sensor or switch, and (ii) Gardos as teaching a tilt sensor being activated when head action causes the sensor to be tilted more than a predetermined angle for a predetermined duration of time (Ans. 5-6). As to the second rejection, supra, the Examiner (Ans. 10-13) further relies upon Lenz as teaching a hands-free push-to-talk function including means for maintaining a communication device in a transmit mode in response to a tilt sensor being titled more than a predetermined angle after a selected time delay. The Examiner asserts that Lenz’s “‘click’ noise Appeal 2009-013570 Application 10/709,345 5 presents a selected time delay” (Ans. 12), and that Lenz’s column 3, lines 40-43 supports such a finding.2 As to the third rejection, supra, the Examiner (Ans. 14-18) further relies upon (i) Brenig as teaching a hands-free push-to-talk sensor or switch being an air pressure sensitive switch for activating a transmit mode of a communication device (Ans. 14-15), and (ii) White as teaching activating the transmit mode of a communication device in response to a user blowing on an air pressure sensitive switch with a preset air pressure (Ans. 15). Appellant’s Contentions 1. Appellant contends with regard to the first rejection, supra, that the Examiner erred in rejecting claims 1, 12-14, 22, 26, 31, 33, 36, 37, and 41 under § 103(a) over the combination of Holmes and Gardos for numerous reasons, including: (i) Holmes and Gardos are not combinable, and a person having ordinary skill in the art (POSITA) would not be motivated to combine Holmes’s body activated switch with Gardos’s talking head control system for improved speech recognition; (ii) replacing Holmes’s chest switch with Gardos’s accelerometer would not operate to detect a user’s head movement; (iii) the Examiner has not explained how to combine Holmes and Gardos (i.e., has not explained where the switch would be located); (iv) the Examiner employed impermissible hindsight; (v) Holmes fails to disclose a tilt sensor being titled more than a predetermined angle due to gravity for a predetermined time duration; (vi) Gardos fails to teach or 2 Column 3, lines 40-43 of Lenz states, “[i]n order to indicate to the wearer when he has operated the switch, the switch is constructed so that it creates an easily heard ‘click’ noise both when it is closed and when it is opened again.” Appeal 2009-013570 Application 10/709,345 6 suggest the features recited in claim 1; and (vii) even if properly combined, Holmes and Gardos do not teach a hands-free push-to-talk sensor or switch being mounted on a headset (see App. Br. 5-12). Appellant makes similar arguments with regard to claims 12-14, 22, 26, 31, 33, 36, 37, and 41 (App. Br. 10-12). 2. Appellant contends with regard to the second rejection, supra, that the Examiner erred in rejecting claims 4, 5, 27, and 42 under § 103(a) over the combination of Holmes, Gardos, further in view of Lenz, for numerous reasons, including: that (i) Lenz fails to teach or suggest a time delay, and simply clicks after the switch is in transmit mode, as recited in claim 4; and (ii) none of the references to Holmes, Gardos, or Lenz teach or suggest a tilt sensor being tilted more than a predetermined angle after a selected time delay, as recited in claim 4 (App. Br. 12-13). Appellant makes similar arguments with regard to claims 5, 27, and 42 (App. Br. 13). 3. Appellant contends with regard to the third rejection, supra, that the Examiner erred in rejecting claims 9-11, 28-30, 35, and 43-45 under § 103(a) over the combination of Holmes, Gardos, Lenz, further in view of Brenig and White for numerous reasons including that Brenig and White disclose a microphone for speech recognition, but do not teach or suggest a pressure sensitive switch or an air pressure switch with a present air pressure switch is in transmit mode, as recited in claim 9 (App. Br. 13-15). Appellant makes similar arguments with regard to claims 10, 11, 28-30, 35, and 43-45 (App. Br. 14-15). Appeal 2009-013570 Application 10/709,345 7 Issues on Appeal Did the Examiner err in rejecting claims 1, 12-14, 22, 26, 31, 33, 36, 37, and 41 (the first rejection, supra) as being obvious because Holmes and Gardos are not properly combinable, and if combined, do Holmes and Gardos fail to teach or suggest the limitations at issue, as recited in independent claim 1? Did the Examiner err in rejecting claims 4, 5, 27, and 42 (the second rejection, supra) as being obvious because Lenz’s click noise fails to teach or suggest the time delay limitation of “after a selected time delay,” as recited in claim 4? Did the Examiner err in rejecting claims 9-11, 28-30, 35, and 43-45 (the third rejection, supra) as being obvious because Brenig and White fail to teach or suggest the “air pressure sensitive switch” limitation as recited in claim 9? ANALYSIS We have reviewed the Examiner’s rejections in light of Appellant’s contentions in the Appeal Brief and Reply Brief that the Examiner has erred. We agree with Appellant’s second contention above regarding claims 4, 5, 27, and 42 (the second rejection, supra). Lenz discloses a hands-free communication device and headset assembly 10 with a push-to-talk switch 34 that indicates opening and closing of the switch with a “click” noise (col. 3, ll. 31-48; Figs. 1 and 2). Lenz fails to teach or suggest that the click noise is a time delay that is selected, or that a transmit mode is maintained in response to a tilt sensor being activated “after a selected time delay,” as set forth in claim 4. Lenz’s switch operation is described in column 3, lines 27- Appeal 2009-013570 Application 10/709,345 8 48 as making a “’click’ noise both when it is closed and when it is opened again” (col. 3, ll. 42-43 (emphasis added)), but is nowhere discussed as being operated (i.e., opened/closed) “after a selected time delay” (claim 4 (emphasis added)), as recited in claim 4. The same reasoning holds for claims 5, 27, and 42 which also recite a device for hands-free push-to-talk functionality that operates in response to a tilt sensor being titled more than a predetermined angle after a selected time delay. However, we disagree with Appellant’s first and third contentions above regarding the rejections of claims 1, 12-14, 22, 26, 31, 33, 36, 37, and 41 (the first rejection, supra), and claims 9-11, 28-30, 35, and 43-45 (the third rejection, supra), respectively. As to the first and third rejections, we adopt as our own (1) the findings and reasons set forth by the Examiner in the action from which this appeal is taken, and (2) the reasons set forth by the Examiner in the Examiner’s Answer in response to Appellant’s Appeal Brief (see Ans. 4-10 and 14-25). We concur with the conclusions reached by the Examiner with respect to claims 1, 9-14, 22, 26, 28-31, 33, 35-37, 41, and 43-45. With regard to the first and third rejections, Holmes discloses a control switch (i.e., hand-free push-to-talk sensor or switch) operable by the titling of a user’s head (col. 1, ll. 34-36; Figs. 1 and 2). We agree with the Examiner (Ans. 22) that Holmes’s button 21 and arm 26 are encompassed by the “tilt sensor” recited in the claims on appeal (see e.g., claim 1), since the user’s head is tilted in order to activate device operation in a hands-free manner. And, Gardos discloses a sensor 112 including a 2-axis accelerometer 118 which senses head orientation of a user’s head 104 (Figs. 1 and 2) and measures acceleration forces, “including static acceleration Appeal 2009-013570 Application 10/709,345 9 forces such as gravity” (¶ [0017]). Gardos senses degrees of movement (¶ [0025]; e.g., head shakes), and upon detecting a head tilting slightly down, recognizes user speech commands to control word processor actions (¶ [0048]), but is not limited to speech recognition technology (see Ans. 23). Accordingly, we agree with the Examiner (Ans. 22) that the combination of Holmes and Gardos would be operable to activate a mode of operation of a communication device in response to a tilt sensor being tilted more than a predetermined angle due to gravity for a predetermined time. We also agree with the Examiner (Ans. 18-21) that the combination of Holmes and Gardos would have been obvious to a POSITA in order to improve safety by upgrading the body-attached device and push-to-talk communication control taught by Holmes with the hands-free headset that senses head movements of Gardos. Appellant has not shown that the combination of Holmes and Gardos is improper or fails to teach or suggest (i) a tilt sensor being titled more than a predetermined angle due to gravity for a predetermined time duration, or (ii) a hands-free push-to-talk sensor or switch being mounted on a headset. With regard to the third rejection, Brenig discloses an air pressure switch for controlling send/receive commands triggered by human speech (col. 2, ll. 5-20; col. 4, l. 31), to enable controller 13 to activate certain functions (col. 3, ll. 19-26). Thus, Brenig teaches or suggests an air pressure sensitive switch that activates a transmit mode of a communication device in response to a user blowing on the switch, as recited in claim 9. Accordingly, Appellant’s contentions (App. Br. 13-14) that Brenig only teaches speech recognition, and fails to teach a pressure sensitive switch or a transmit mode as claimed in claim 9, are not convincing. Appeal 2009-013570 Application 10/709,345 10 With further regard to the third rejection, White discloses a voice- controlled radio transceiver 5 (Fig. 1) for transmitting/receiving based on audible verbal phrases using a speech recognition circuit 9 to eliminate the need to hold a microphone with a push-to-talk switch (col. 2, ll. 16-20; col. 3, ll. 19-26; and col. 4, l. 31), and a pressure sensor 263 (included in headset 260) for detecting vocal pressure (col. 3, ll. 21-27; col. 5, ll. 1-14; Fig. 2A). White’s training mode measures ambient pressure as a baseline and then determines and stores a minimum input threshold level pressure that will signal activation or triggering of the device when the detected pressure goes above the threshold (col. 5, ll. 1-14). Thus, White’s operation reads on the air pressure sensitive switch limitation recited in claim 9, and Appellant’s contention (App. Br. 14) that White only teaches speech recognition as opposed to a user blowing on an air pressure sensitive switch are not convincing. Similar reasoning holds for claims 10, 11, 28-30, 35, and 43-45 which also recite an air pressure sensitive switch for detecting when air pressure caused by a user’s blowing on the switch exceeds a preset air pressure. Appellant’s assertion (App. Br. 15) that the inventions of Holmes, Gardos, Lenz, Brenig, and White are “completely unrelated” is without merit. All of the applied references are from the same field of endeavor, communication devices having microphones and a sensor/switch to control activation of the device in some manner. CONCLUSIONS (1) Appellant has established that the Examiner erred in rejecting claims 4, 5, 27, and 42 as being unpatentable under 35 U.S.C. § 103(a). Appeal 2009-013570 Application 10/709,345 11 (2) The Examiner did not err in rejecting claims 1, 9-14, 22, 26, 28- 31, 33, 35-37, 41, and 43-45 as being unpatentable under 35 U.S.C. § 103(a). (3) On this record, claims 4, 5, 27, and 42 have not been shown to be unpatentable. (4) Claims 1, 9-14, 22, 26, 28-31, 33, 35-37, 41, and 43-45 are not patentable. DECISION The Examiner's rejection of claims 4, 5, 27, and 42 is reversed. The Examiner’s rejections of claims 1, 9-14, 22, 26, 28-31, 33, 35-37, 41, and 43-45 are 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)(iv). AFFIRMED-IN-PART msc Copy with citationCopy as parenthetical citation