Ex Parte Wang et al

Patent Trial and Appeal Board

Feb 28, 2017

13102658 (P.T.A.B. Feb. 28, 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.
13/102,658 05/06/2011 Kong Qiao Wang 042933/405341 7575
10949 7590
Nokia Corporation and Alston & Bird LLP
c/o Alston & Bird LLP
Bank of America Plaza, 101 South Tryon Street
Suite 4000
Charlotte, NC 28280-4000
EXAMINER
DICKE, CHAD M
ART UNIT PAPER NUMBER
2693
NOTIFICATION DATE DELIVERY MODE
03/02/2017 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):
u sptomail @ alston .com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte KONG QIAO WANG and JANI PETRI JUHANI OLLIKAINEN
Appeal 2016-004671
Application 13/102,6581
Technology Center 2600
Before ELENI MANTIS MERCADER, JOHN P. PINKERTON, and
TERRENCE W. McMILLIN, Administrative Patent Judges.
PINKERTON, Administrative Patent Judge
DECISION ON APPEAL
Appellants appeal under 35 U.S.C. § 134(a) from the Examiner’s
Final Rejection of claims 2, 4—16, 18, and 20—24, which are the only claims
pending in the application. Claims 1,3, 17, and 19 are canceled. We have
jurisdiction under 35 U.S.C. § 6(b).
We affirm.
1 Appellants identify Nokia Technologies Oy as the real party in interest.
App. Br. 2.
Appeal 2016-004671
Application 13/102,658
STATEMENT OF THE CASE
Introduction
Appellants’ disclosed and claimed invention is generally directed to
gesture recognition. Spec. 1,1. 5.2
Claim 21 is representative and reproduced below (with the disputed
limitation emphasized)'.
21. Apparatus, the apparatus having at least one processor
and at least one memory having computer-readable code stored
thereon which when executed controls the at least one
processor:
to receive signals from a first sensor configured to detect
optical electromagnetic radiation and a second sensor
configured to detect non-optical electromagnetic radiation, the
first and second sensors having respective first and second
fields of view which partially overlap to provide a space in
which both the first and second sensors can detect a common
object, and:
in response to detecting a common object in said space,
to generate first and second signature information using
information received from the first and second sensors,
respectively, and then to identify from third signature
information generated using the first and second signature
information, a predetermined gesture based on detected
movement of the common object, and to control a user interface
function in accordance with the identified gesture,
wherein the at least one processor is configured to
receive information from one or more additional sensors and to
2 Our Decision refers to the Final Action mailed Apr. 14, 2015 (“Final
Act.”); Appellants’ Appeal Brief filed Oct. 14, 2015 (“App. Br.”) and Reply
Brief filed Apr. 4, 2016 (“Reply Br.”); the Examiner’s Answer mailed Feb.
3, 2016 (“Ans.”); and the original Specification filed May 6, 2011 (“Spec.”).
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Application 13/102,658
adjust relative weightings of the first and second signature
information used to generate the third signature information
based on the information from the one or more additional
sensors, wherein the first signature information is generated
using information received from the first sensor configured to
detect optical electromagnetic radiation and wherein the second
signature information is generated using information received
from the second sensor configured to detect non-optical
electromagnetic radiation.
Rejections on Appeal
Claims 2, 4—8, 13—16, 18, and 20-24 stand rejected under 35 U.S.C.
§ 103(a) as being unpatentable over Bell (US 2006/0139314 Al; published
June 29, 2006) and Anderson (US 2010/0063672 Al; published Mar. 11,
2010).
Claims 9-12 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Bell, Anderson, and Schobben et al. (US 2006/0279528
Al; published Dec. 14, 2006) (“Schobben”).
ANALYSIS
We have reviewed the Examiner’s rejections in light of Appellants’
arguments in the Briefs and are not persuaded the Examiner has erred.
Unless otherwise noted, we adopt as our own the findings and reasons set
forth by the Examiner in the Office Action from which this appeal is taken
(Final Act. 2—22) and in the Examiner’s Answer (Ans. 2—11), and we concur
with the conclusions reached by the Examiner. For emphasis, we consider
and highlight specific arguments as presented in the Briefs.
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Rejection of Claims 2, 4—8, 12—16, 18, and 20—243 under § 103(a)
Proposed Combination of Bell and Anderson
Appellants argue Anderson cannot be properly combined with Bell
because Bell relates to an interactive display system and Anderson discloses
an apparatus for processing sensor data and controlling movement of a
vehicle. App. Br. 5. In the Reply Brief, Appellants argue Bell and
Anderson are not from analogous fields and are not directed to solving a
similar problem, as Bell relates to detecting gestures performed by human
hands, while Anderson uses radar to detect objects much larger than human
hands, such as telephone poles and trees. Reply Br. 1. Appellants also
argue the Examiner’s characterization of both references on page 22 of the
Final Action “as incorporating two or more sensors located within a device,
wherein the sensors detect. . . information occurring near the device, and
where the information is acted upon by the system” is overly general
because the independent claims require “identification of a predetermined
gesture based on detected movement of an object and the control of a user
interface function in accordance with the identified gesture.” Id. at 5—6.
According to Appellants, the radar sensor of Anderson is “described . . . only
in relation to dead reckoning ... to calculate the location of a vehicle using
locations of ‘non-mobile objects, such as telephone poles, trees, roads and
other suitable landmarks.’” Id. at 6 (citing Anderson | 52, 54). Thus,
Appellants argue
one skilled in the art would not have looked to Anderson and, in
turn, combined Anderson with Bell in an effort to obviate the
3 We decide the rejection of claims 2, 4—8, 13—16, 18, and 20-24, which are
rejected under the first-stated ground of rejection, on the basis of
representative claim 21. See 37 C.F.R. § 41.37(c)(l)(iv).
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claims which recite the receipt of signals from a second sensor
configured to detect non-optical electromagnetic radiation from
which an object may be detected and a predetermined gesture
may then be identified.
Id. Appellants further argue the processing of signals from a radar sensor
for dead reckoning is “markedly different” from processing signals to detect
an object and identify a predetermined gesture, as required by the
independent claims and, therefore, the combination of Bell and Anderson
“would not yield the requisite predictable results and, instead, the
combination would lack the reasonable expectation of success” required to
properly combine the references. Id. at 6—7.
We are not persuaded by Appellants’ arguments that the Examiner
erred by combining Bell and Anderson. First, the Examiner finds, and we
agree, Anderson is reasonably pertinent to the problem with which
Appellants’ were concerned. Ans. 5. In that regard, we note Appellants’
Specification states:
Embodiments described herein comprise a device or terminal,
particularly a communications terminal, which uses
complementary sensors to provide information characterising the
environment around the terminal. In particular, the sensors
provide information which is processed to identify an object in
respective sensing zones of the sensors, and the object’s motion,
to identify a gesture.
Spec. 5,11. 15-19.
Appellants argue Bell and Anderson are not “directed to solving a
similar problem.” See Reply Br. 1. The test, however, for determining
whether a reference is “analogous art” is whether a reference “is reasonably
pertinent to the problem with which the inventor was concerned in order to
rely on that reference as a basis for rejection.” In re Kahn, 441 F.3d 977,
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986-87 (Fed. Cir. 2006) (citing In re Oetiker, 977 F.2d 1443, 1447 (Fed. Cir.
1992)). “A reference is reasonably pertinent if, even though it may be in a
different field from that of the inventor’s endeavor, it is one which, because
of the matter with which it deals, logically would have commended itself to
an inventor’s attention in considering his problem.” In re Clay, 966 F.2d
656, 659 (Fed. Cir. 1992).
Here, the Examiner finds claim 21 is directed to a processor, memory,
and two sensors: a first sensor configured to detect optical electromagnetic
radiation, such as a camera; and, a second sensor to detect non-optical
electromagnetic radiation, such as a radio wave sensor or an acoustic
detector. Ans. 3. The Examiner finds the primary reference Bell teaches a
system having a processor and memory, which uses multiple sensors
(cameras) as a means of object detection. Id. Thus, the Examiner finds
“Bell is based on multiple sensors detecting an object and using the sensor-
created-signals to adjust the functionality of the device.” Id. at 3^4. The
Examiner also finds:
Secondary reference, Anderson discloses a system which also
uses multiple sensors for detecting objects and wherein the
sensors in system are used to detect optical electromagnetic
radiation (camera) and non-optical electromagnetic radiation
(radar). Both references teach the use of multiple sensors for
detecting objects and using the signals provided by the sensors
as a means for adjusting the system.
Id. at 4; see also id. at 6—7.
Thus, we agree with the Examiner’s finding that Anderson is
reasonably pertinent to the problem addressed by Appellants of using
multiple sensors to detect objects around the device and modify the system
because, as the Examiner finds, “Anderson provides additional means for
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Application 13/102,658
detecting objects and providing inputs and determining system changes
based on detection of objects by multiple sensors (Anderson, Fig. 8,
[0072]).” Id. at 5.
Second, we are not persuaded by Appellants’ arguments that (1) the
radar sensor of Anderson is described only in relation to dead reckoning
using locations of non-mobile objects, (2) the processing of signals from a
radar sensor for dead reckoning is “markedly different” from processing
signals to detect an object and identify a predetermined gesture, and (3) the
combination of Bell and Anderson would not yield predictable results and
would lack reasonable expectation of success. See App. Br. 6—7. Regarding
the use of radar in Anderson, the Examiner finds, and we agree, Anderson
specifically teaches that “[r]adar 514 uses electromagnetic waves to identify
the range, altitude, direction, or speed of both moving and fixed objects.”
Ans. 4 (citing Anderson 152). (Emphasis added). Appellants’ argument
that the processing of radar signals is “markedly different” from processing
signals to detect to an object is not persuasive because it is unsupported by
any evidence or citation to the record. Mere attorney arguments and
conclusory statements that are unsupported by factual evidence are entitled
to little probative value. In re Geisler, 116 F.3d 1465, 1470 (Fed. Cir.
1997); In re De Blauwe, 736 F.2d 699, 705 (Fed. Cir. 1984). Thus, for these
reasons, we are also not persuaded by Appellants’ arguments that the
combination of Bell and Anderson would not yield predictable results and
would lack a reasonable expectation of success. In that regard, we agree
with the following finding of the Examiner:
Therefore, one of ordinary skill would have combined Bell and
Anderson with a reasonable expectation of success, as the
combination of the two references replace one of the multiple
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sensors for detecting objects in Bell, with one of the multiple
sensors for detecting objects in Anderson, to provide a system
which can detect optical and non-optical electromagnetic
radiation with the purpose of detecting objects, thereby providing
a signal which alters the system and system operation.
Ans. 4—5.
In the Reply Brief, Appellants make two new arguments. First,
Appellants argue it would not be proper to combine Bell and Anderson “to
identify from third signature information . . . a predetermined gesture based
on detected movement of the common object,” and “Bell and Anderson
would not be combinable to monitor a common object without further
inventive effort.” Id. at 1—2. Second, Appellants argue “the sensors of the
two prior art documents would need to be able to detect a common object to
be properly combinable.” Id. at 2. Because these arguments are raised by
Appellants for the first time in the Reply Brief not in response to a shift in
the Examiner's position and without otherwise showing good cause, they are
waived. See 37 C.F.R. § 41.41(b)(2); see also Ex parte Borden, 93 USPQ2d
1473, 1474 (BPAI 2010) (informative) (“[T]he reply brief [is not] an
opportunity to make arguments that could have been made in the principal
brief on appeal to rebut the Examiner’s rejections, but were not.”).
Does Combination teach Disputed Limitation?
Appellants argue that, even if combined, “Anderson does not teach or
suggest the adjustment of weights based on information from different
sensors with the weighting being applied to signature information that has
been generated from the signals received from the second sensor that has
detected non-optical electromagnetic radiation, as recited by the independent
claims.” App. Br. 7—8. Appellants argue the Examiner improperly relies on
paragraph 72 of Anderson because it only relates to “visible cameras and
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LIDAR (a GPS receiver dos not have a field of view to detect an object, as
claimed).” Id. at 8. Appellants also argue there is no motivation or
suggestion to modify Anderson to weigh data from a sensor configured to
detect non-optical electromagnetic radiation “since any alleged weighting is
specifically described with respect to signals received from other sources.”
Id.
We do not find Appellants’ arguments persuasive. Appellants’
argument that Anderson does not relate to the weighting of signature
information derived from any sensor configured to detect non-optical
electromagnetic radiation is not persuasive because it attacks Anderson
individually, whereas the Examiner’s rejection is based on the combined
teachings of Bell and Anderson. In re Merck & Co. Inc., 800 F.2d 1091,
1097 (Fed. Cir. 1986) (“Non-obviousness cannot be established by attacking
references individually where the rejection is based upon the teachings of a
combination of references.”). The relevant inquiry is whether the claimed
subject matter would have been obvious to those of ordinary skill in the art
in light of the combined teachings of the references. See In re Keller, 642
F.2d 413, 425 (CCPA 1981).
Here, the Examiner finds, and we agree, that Bell teaches first,
second, and third signature information, which is provided by multiple
sensors. Ans. 8—9 (citing Bell Fig. 1,146). The Examiner also finds, and
we agree, Anderson discloses a system using a plurality of sensors, including
cameras and radar, for detecting objects to provide input to a vehicle system.
Id. (citing Anderson Figs. 2A, 3, 5,143); see also Final Act. 5. Contrary to
Appellants’ argument that paragraph 72 of Anderson relates only to “visible
cameras and FIDAR” (see App. Br. 8), paragraph 72 describes Figure 10
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and broadly teaches “prioritizing sensor data,” which the Examiner finds,
and we agree, includes sensor data from cameras and radar, as taught by
Anderson.4 See Final Act. 5 (citing Anderson Fig. 5,172). The Examiner
further finds, and we agree, Anderson teaches “a process of weighing certain
data provided by the different sensors more heavily than other sensors.”
Ans. at 9—10 (citing Anderson 173). Thus, the Examiner finds the
combination of Bell and Anderson teaches or suggests the disputed
limitation:
As previously cited, both Bell and Anderson use multiple sensors
for providing input to the system. Where Bell only uses multiple
types of cameras for optical electromagnetic radiation detection;
Anderson uses multiple types of sensors and can detect optical
electromagnetic radiation and non-optical electromagnetic
radiation. With Anderson disclosing the weighing of sensor
information between multiple sensors, the same teaching can be
applied to Bell who also uses multiple sensors. As cited
previously, the third signature information is the combination of
information from the plurality of sensors, therefore, if one sensor
has a higher weighing than another sensor, the combined third
signature information would also be affected; thereby teaching
the claimed limitation of “ . . . receiving information from one or
more additional sensors and adjusting relative weightings of the
first and second signature information used to generate the third
signature information based on the information from the one or
more additional sensors, wherein the first signature information
is generated using information received from the first sensor
configured to detect optical electromagnetic radiation and
wherein the second signature information is generated using
information received from the second sensor configured to detect
non-optical electromagnetic radiation.”
4 Because Anderson broadly teaches weighing sensor data, which includes
cameras and radar, Appellants’ argument that there is no motivation or
suggestion to modify Anderson to weigh data from a sensor configured to
detect non-optical electromagnetic radiation is not persuasive.
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Id. at 10—11.
For the reasons set forth by the Examiner, we find the
preponderance of the evidence supports the Examiner’s findings that
the combination of Bell and Anderson teaches or suggests the
disputed limitation of claim 21.
Accordingly, we are not persuaded the Examiner erred in (1)
finding Bell and Anderson are properly combinable as analogous art,
(2) finding the combination of Bell and Anderson teaches or suggests
the disputed limitation of claim 21, and (2) concluding that the
combination of Bell and Anderson renders the subject matter of claim
21 obvious under 35 U.S.C. § 103(a). Thus, we sustain the
Examiner’s rejection of claim 21. For the same reasons, we sustain
the Examiner’s rejection of independent claims 14 and 20, as well as
dependent claims 2, 4—8, 13, 15, 16, 18, and 22—24, which are not
separately argued.
Rejection of Claims 9—12 under § 103(a)
Appellants do not advance substantive separate arguments for claims
9-12, which are rejected under the second-stated ground of rejection.
Appellants contend these claims are allowable for the same reasons argued
with respect to claim 21, from which they depend. See App. Br. 7—9.
However, for the reasons discussed above regarding the first-stated ground
of rejection, we sustain the Examiner’s rejection of claim 21 and, therefore,
we sustain the rejection of claims 9—12.
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DECISION
We affirm the Examiner’s rejections of claims 2, 4—16, 18, and 20—24
under 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).
AFFIRMED
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