Ex Parte Vance

Board of Patent Appeals and Interferences

May 31, 2011

10709345 (B.P.A.I. May. 31, 2011)

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 Although the Examiner states that these claims stand withdrawn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

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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).
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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
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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.”
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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).

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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-
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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
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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.
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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).
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(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

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