Lenovo (Singapore) Pte. Ltd.

Patent Trials and Appeals Board

Sep 21, 2020

14669387 - (D) (P.T.A.B. Sep. 21, 2020)

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.
14/669,387 03/26/2015 David Alexander Schwarz RPS920140122USNP(710.387) 1170
58127 7590 09/21/2020
FERENCE & ASSOCIATES LLC
409 BROAD STREET
PITTSBURGH, PA 15143
EXAMINER
LI, LIN
ART UNIT PAPER NUMBER
2693
MAIL DATE DELIVERY MODE
09/21/2020 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 PATENT TRIAL AND APPEAL BOARD
________________

Ex parte DAVID ALEXANDER SCHWARZ, MING QIAN,
GEOFFREY SIMON BULA, and JOHN WELDON NICHOLSON
________________

Appeal 2019-003857
Application 14/669,387
Technology Center 2600
________________

Before ALLEN R. MacDONALD, JASON V. MORGAN, and
JAMES B. ARPIN, Administrative Patent Judges.

MORGAN, Administrative Patent Judge.

DECISION ON APPEAL
STATEMENT OF THE CASE
Introduction
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s decision to reject claims 1–20, all of the pending claims. We
have jurisdiction under 35 U.S.C. § 6(b).
We affirm.

1 We use the word “Appellant” to refer to “applicant” as defined in 37
C.F.R. § 1.42. Appellant identifies the real party in interest as Lenovo
(Singapore) PTE. LTD. Appeal Br. 3.
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Summary of the Disclosure
Appellant’s claimed subject matter relates to performing an action in
response to a user’s gesture based on sensor data received by a wearable
device. Abstract.
Representative Claim (Key Limitations Emphasized and Bracketing Added)
1. A method, comprising:
receiving, at a band of a wearable device located at a body part
of a user, gesture data from at least one electromyography
sensor operatively coupled to the band of the wearable device,
wherein the gesture data is based upon a gesture providing
movement of at least a portion of the body part and performed
by the user;
[1] identifying, using a processor, the gesture performed by the
user using the gesture data and a comparison body part
geometry model, [1a] wherein the identifying is performed
using a fused data stream comprising the gesture data fused
into a single data stream and comparing the fused data stream
to a prediction model; and
performing at the wearable device an action based upon the
gesture identified.
The Examiner’s Rejections and Cited References
The Examiner rejects claims 1, 11, and 20 under 35 U.S.C. § 112(a) as
failing to comply with the written description requirements. Final Act. 3–4.
The Examiner rejects claims 1–4, 7–14, and 17–20 under 35 U.S.C.
§ 103 as unpatentable over the combined teachings of Lake et al. (US
2014/0240223 A1; published Aug. 28, 2014) (“Lake”) and Westerman et al.
(US 2008/0211766 A1; published Sept. 4, 2008) (“Westerman”). Final Act.
4–12.
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The Examiner rejects claims 5 and 6 under 35 U.S.C. § 103 as
unpatentable over the combined teachings of Lake, Westerman, and Jaeger
et al. (US 7,084,860 B1; issued Aug. 1, 2006) (“Jaeger”). Final Act. 13.
The Examiner rejects claims 15 and 16 under 35 U.S.C. § 103 as
unpatentable over the combined teachings of Lake, Westerman, Jaeger, and
Sugden (US 8,937,663 B2; issued Jan. 20, 2015). Final Act. 13–14.
The Examiner alternatively rejects claims 15 and 16 under 35 U.S.C.
§ 103 as unpatentable over the combined teachings of Lake, Westerman,
Jaeger, and Moore et al. (US 2015/0070129 A1; published Mar. 12, 2015)
(“Moore”). Final Act. 14.
ADOPTION OF EXAMINER’S FINDINGS AND CONCLUSIONS
We agree with and adopt as our own the Examiner’s findings as set
forth in the Answer and in the Final Action, from which this appeal was
taken, and we concur with the Examiner’s conclusions. We have considered
Appellant’s arguments, but do not find them persuasive of error. We provide
the following explanation for emphasis.
ANALYSIS
35 U.S.C. § 112(a)
Appellant previously amended recitation [1] of claim 1 by adding the
limitations “and a comparison body part geometry model, wherein the
identifying is performed using a fused data stream comprising the gesture
data fused into a single data stream and comparing the fused data stream to a
prediction model.” Amend. 2 (May 8, 2018). In rejecting claim 1 as failing
to have sufficient written description support in the Specification, the
Examiner finds the newly added limitation “is not described in the original
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disclosure.” Final Act. 3. Specifically, the Examiner finds that “there is no
disclosure support for ‘body part geometry model’ or ‘comparison body
part geometry model.’” Ans. 5. The Examiner notes that Specification only
discusses a “geometry” once (id. at 4 (citing Spec. ¶ 18)) and a “model” in
two paragraphs (id. at 5 (citing Spec. ¶¶ 42, 43)). But the Examiner
concludes these isolated disclosures fail to “explicitly and adequately
describe” the features of recitation [1]. Id. at 4.
Appellant contends the Examiner erred in concluding the
Specification “does not sufficiently describe ‘fused data stream.’” Appeal
Br. 22; Reply Br. 26. Appellant submits the Specification discloses
collecting “the data streams from all the sensors (e.g., EMG, pressure,
tension, stretch, etc.) and combin[ing] all the streams . . . [to] be sent to a
prediction model that identifies a decision tree corresponding to features of
the data streams.” Appeal Br. 23 (citing Spec. ¶ 43); Reply Br. 27. Appellant
further submits the Specification provides “different examples in different
embodiments that specifically call out different fusion techniques and
discuss[] fusing sensor data.” Appeal Br. 23 (citing Spec. ¶¶ 19–22); Reply
Br. 27.
Appellant’s arguments are not persuasive of error because Appellant
only identifies support for limitations pertaining to a “fused data stream.”
Appeal Br. 22–23; Reply Br. 26–27. The Examiner’s findings, however, are
based on the Specification’s inadequate written description support for the
“comparison body part geometry model” limitation of recitation [1]. Ans. 4–
6. Appellant’s arguments, which are silent with respect to this limitation, fail
to rebut the Examiner’s findings. Therefore, we agree with the Examiner that
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the Specification fails to provide sufficient written description support for
recitation [1].
Accordingly, we sustain the Examiner’s 35 U.S.C. § 112(a) rejection
of claim 1, and claims 11 and 20, which Appellant does not argue separately
with respect to this rejection.
35 U.S.C. § 103
In rejecting claim 1 as obvious, the Examiner initially found that
“Lake does not expressly disclose” limitation [1a], “wherein the identifying
is performed using a fused data stream comprising the gesture data fused
into a single data stream and comparing the fused data stream to a prediction
model.” Final Act. 5. Thus, the Examiner relied on Westerman’s concept of
multi-touch (MT) data fusion—combining or fusing information flowing
from various sources, “such that events in each data stream are time aligned
with each other” (Westerman ¶ 6)—to teach or suggest modifying Lake “to
identify gesture data by using a fused data stream to use the gesture data into
a single data stream and comparing the fused data stream to a prediction
model” (Final Act. 6). Final Act. 5–6 (citing, e.g., Westerman, Figs. 1–25,
¶¶ 30–60). The Examiner concluded the combination would have been
obvious as a way of providing “a strong set of user control means [because]
additional information from other sensing modalities when combined or
fused with the chording and movement data can significantly enhance the
interpretive abilities of the electronic device and/or significantly improve the
ease of use[] as well as streamline input operation[s] for the user.” Id. at 6
(citing Westerman ¶¶ 4–8).
The Examiner now clarifies that, like Westerman, “Lake teaches
combining [(i.e., fusing)] multiple parameter input data to determine [a]
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gesture command, but [that Lake] does not explicitly use the terminology of
a ‘fused data stream’ comprising the gesture data fused into a single data
stream.” Ans. 12. That is, the Examiner finds that Lake alone teaches or
suggests limitation [1a], but that “it would have been obvious to a person of
ordinary skill in the art . . . to use [the] well known terminology of a fused
data stream” found in Westerman. Id. at 14.
Appellant contends the Examiner erred by only providing “a
conclusory statement, that ‘[i]t would have been obvious . . . to modify Lake
to identify gesture data by using a fused data stream to use the gesture data
into a single data stream . . . .’” Appeal Br. 24 (citing Final Act. 6), 27–28
(citing In re Nuvasive, Inc., 842 F.3d 1376, 1382 (Fed. Cir. 2016)); Reply
Br. 28, 30. But in arguing the Examiner only provides a conclusory
statement, Appellant omits and does not address the reasoning and evidence
proffered by the Examiner in the sentence immediately following the
purportedly conclusory statement. Compare Appeal Br. 24 with Final Act. 6
(citing Westerman ¶¶ 4–8) (“[t]he motivation would have been . . .”). Thus,
the Examiner’s articulated reason, which has a rational underpinning, why
the combination of Lake and Westerman would have been obvious is
unrebutted.
Appellant further argues “one skilled in the art would not combine the
teachings of Lake with Westerman because” combining the Lake muscle
control teachings and the Westerman multi-touch data fusion teachings
“would not result in the claimed limitations.” Appeal Br. 25; Reply Br. 29–
30. In particular, Appellant argues that Lake—in disclosing “a system in
which the ‘detected user gestures from the sensors are processed into a
control signal for allowing the user to interact with content displayed on the
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controllable connected device’” (Appeal Br. 28 (quoting Lake, Abstract);
Reply Br. 30)—fails to teach or suggest the limitations of claim 1 because
“Lake teaches a system in which a muscle interface interacts with either a
wire or wireless connection to a connected device” (Appeal Br. 28 (further
citing Lake ¶¶ 29, 34, Fig. 1)). But Appellant’s conclusory assertions fail to
distinguish the claimed invention from Lake.
Appellant also argues Westerman’s system does not
even mention[] “identifying, using a processor, the gesture
performed by the user using the gesture data and a comparison
body part geometry model, wherein the identifying is performed
using a fused data stream comprising the gesture data fused
into a single stream and comparing the fused data stream to a
prediction model.”
Id. at 29; Reply Br. 33. The Examiner’s rejection, however, is based on
Westerman’s teachings and suggestions in combination with Lake, which the
Examiner finds teach or suggest “identifying, using a processor, the gesture
performed by the user using the gesture data and a comparison body part
geometry model.” Final Act. 5 (citing Lake ¶¶ 43–44, 90–105, Figs. 1–9).
Appellant’s arguments with respect to Westerman individually do not show
error in the Examiner’s reliance on the combined teachings and suggestions
of Lake and Westerman.
Furthermore, Appellant fails to address the Examiner’s finding that
Lake alone teaches or suggests the recitations of claim 1, albeit with
terminology that differs with respect to the “fused data stream” limitations of
recitation [1a]. Ans. 12–14. An obviousness rejection is properly sustainable
based on a subset of the references originally relied on to make the rejection.
See In re Bush, 296 F.2d 491, 496 (CCPA 1961). Because Appellant fails to
show error in the Examiner’s reliance on Lake alone to teach or suggest all
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of the recitations of claim 1, including disputed recitation [1a], Appellant
fails to show error in the Examiner’s conclusion that claim 1 would have
been obvious in light of the combined teachings and suggestions of Lake and
Westerman.
Accordingly, we sustain the Examiner’s 35 U.S.C. § 103 rejection of
claim 1, and the Examiner’s 35 U.S.C. § 103 rejections of claims 2–20,
which Appellant does not argue separately with respect to the obviousness
rejections. Appeal Br. 24.
CONCLUSION
Claims
Rejected 35 U.S.C. § References/Basis Affirmed Reversed
1, 11, 20 112(a) Written
Description
1, 11, 20
1–4, 7–14,
17–20
103 Lake, Westerman 1–4, 7–14,
17–20

5, 6 103 Lake, Westerman,
Jaeger
5, 6
15, 16 103 Lake, Westerman,
Jaeger, Sugden
15, 16
15, 16 103 Lake, Westerman,
Jaeger, Moore
15, 16
Overall
Outcome
1–20
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TIME PERIOD FOR RESPONSE
No time period for taking subsequent action in connection with this
appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 1.136(a)(1)(iv).
AFFIRMED