Lenovo (Singapore) Pte. Ltd.

Patent Trials and Appeals Board

Aug 27, 2021

2020003950 (P.T.A.B. Aug. 27, 2021)

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.
14/922,930 10/26/2015 David Alexander Schwarz RPS920150035USNP(710.461) 7275
58127 7590 08/27/2021
FERENCE & ASSOCIATES LLC
409 BROAD STREET
PITTSBURGH, PA 15143
EXAMINER
HARRIS, DOROTHY H
ART UNIT PAPER NUMBER
2625
MAIL DATE DELIVERY MODE
08/27/2021 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 parteDAVID ALEXANDER SCHWARZ,
MING QIAN, SONG WANG, and XIAOBING GUO

Appeal 2020-003950
Application 14/922,930
Technology Center 2600

Before JEAN R. HOMERE, ST. JOHN COURTENAY III, and
LARRY J. HUME, Administrative Patent Judges.
HOMERE, Administrative Patent Judge.
DECISION ON APPEAL
I. STATEMENT OF THE CASE1
Pursuant to 35 U.S.C. § 134(a), Appellant2 appeals from the
Examiner’s decision to reject claims 1, 6–12, 17–23, and 25 which constitute
all of the pending claims. Appeal Br. 25. Claims 2–5, 13–16, 24, and 26 are
cancelled. Id. We have jurisdiction under 35 U.S.C. § 6(b).
We affirm.

1 We refer to the Specification, filed Oct. 26, 2015 (“Spec.”); the Final
Office Action, mailed Aug. 7, 2019 (“Final Act.”); the Appeal Brief, filed
Jan. 7, 2020 (“Appeal Br.”); the Examiner’s Answer, mailed Mar. 4, 2020
(“Ans.”); and the Reply Brief, filed May 4, 2020 (“Reply Br.”).
2 “Appellant” refers to “applicant” as defined in 37 C.F.R. §
1.42(a). Appellant identifies the real party in interest as Lenovo (Singapore)
PTE, LTD. Appeal Br. 3.
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II. CLAIMED SUBJECT MATTER
According to Appellant, the claimed subject matter relates to wearable
devices used to provide input into a device (e.g., laptop computer, tablet,
smart phone, cell phone, personal computer, smart TV, etc.). Spec. ¶ 14. The
wearable device detects and processes one-handed gestures as user input and
performs an action based on such gestures or provides instructions to the
device the user intends to control. Id. As an example, the wearable device
can detect depth data between the top and bottom of a user’s wrist by use of
sensors thereby allowing an image to be created by identifying the position
of the user’s hand and fingers. Id. ¶¶ 20–21. Id. The created image is then
sent to a device for processing, where an action based on the identified
gesture is performed. Id.
Claims 1, 12, and 22 are independent. Claim 1 is illustrative of the
claimed subject matter:
1. A method, comprising:

receiving, from more than one sensor of a band shaped wearable
device, depth data, wherein the depth data is based upon a gesture
performed by a user with a body part, wherein at least a first of
the more than one sensor is located substantially near the top of
the user’s wrist and collects a first set of depth data and at least a
second of the more than one sensor is located substantially near
the bottom of the user's wrist and collects a second set of depth
data;

forming, from the first set of depth data and the second set of
depth data, at least one image associated with the gesture
performed by the user by creating an image from each of the first
set of depth data and the second set of depth data and combining
the images to form the at least one image by aligning the images
using a pixel to pixel alignment technique, wherein the pixel to
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pixel alignment technique registers two or more images with one
another to form a single signal stream;

identifying, using a processor, the gesture performed by the user
from the single signal stream, wherein the identifying comprises
determining a location of features of the body part with respect
to other features of the body part; and

performing an action based upon the gesture identified.
III. REFERENCES
The Examiner relies upon the following references as evidence.3
Name Reference Date
Adhikari US 2011/0110560 A1 May 12, 2011
Jeong et al. US 2012/0105326 A1 May 3, 2012
Davis et al. US 2014/0055352 A1 Feb. 27, 2014
Kim et al. US 2014/0098018 A1 April 10, 2014
Tu et al. US 2015/0189253 Al July 2, 2015

IV. REJECTIONS
The Examiner rejects claim 22 under 35 U.S.C. § 101 as being
directed to non-statutory subject matter without significantly more. Final
Act. 4–5.
The Examiner rejects claims 1, 6–12, and 17–26 under 35 U.S.C.
§ 112(a), as failing to satisfy the written description requirement. Final Act.
6–7.
The Examiner rejects claim 1, 6–9, 11, 12, and 17–22 under 35 U.S.C.
§ 103 as unpatentable over the teachings of Davis, Tu, Kim, and Adhikari.
Final Act. 7–23.

3 All reference citations are to the first named inventor only.
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The Examiner rejects claims 10, 23, and 25 under 35 U.S.C. § 103 as
unpatentable over the teachings of Davis, Tu, Kim, Adhikari and Jeong.
Final Act. 23–24.
V. ANALYSIS
We consider Appellant’s arguments seriatim, as they are presented in
the Appeal Brief, pages 25–33 and the Reply Brief, page 27–35.4 We are
persuaded by Appellant’s arguments as to the §§ 101 and 112(a) written
description rejections. We are, however, unpersuaded by Appellant’s
contentions as to the obviousness rejections. Except as otherwise indicated
herein below, we adopt as our own the findings and reasons specific to the
obviousness rejections set forth in the Final Action, and the Examiner’s
Answer in response to Appellant’s Appeal Brief. Final Act. 7–24; Ans. 4–
10.5 Nonetheless, we highlight and address specific arguments and findings
for emphasis as follows.
A. Rejection of Claim 22 under § 101
The Examiner rejects claim 22 for claiming non-statutory subject
matter under § 101 because the Examiner interprets “device readable storage
medium” as to “appear to potentially encompass transitory signals” because

4 We have considered in this Decision only those arguments Appellant
actually raised in the Briefs. Arguments not timely made are forfeited. See
37 C.F.R. § 41.37(c)(1)(iv) (2017).
5 See ICON Health & Fitness, Inc. v. Strava, Inc., 849 F.3d 1034, 1042 (Fed.
Cir. 2017) (“As an initial matter, the PTAB was authorized to incorporate
the Examiner’s findings.”); see also In re Brana, 51 F.3d 1560, 1564 n.13
(Fed. Cir. 1995) (upholding the PTAB’s findings, although it “did not
expressly make any independent factual determinations or legal
conclusions,” because it had expressly adopted the examiner’s findings).
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Applicant’s “program product may be embodied in” the medium. Final
Act. 4–5.
Appellant argues that the specification at paragraph 49 specifically
excludes the interpretation that the computer readable storage medium may
include transitory, propagating signals. Appeal Br. 26.
As an initial matter, we note that claim 22 recites “a storage device”.
We further note that the Specification describes that “a storage device is not
a signal and that ‘non-transitory’ includes all media except signal media.”
Spec ¶ 49. In light of the Specification, we interpret the “storage device” as
being a non-signal bearing and non-transitory storage medium. Id. Because
the record before us provides a definition for “storage device” that expressly
excludes transitory media, the cited term should not be construed under the
broadest reasonable interpretation to encompass transitory media, which is
directed to non-statutory-subject matter. See Ex parte Mewherter, 107
USPQ2d 1857 (PTAB 2013) (precedential).
Accordingly, we reverse the Examiner’s rejection of claim 22 under
§ 101.
B. Rejection of claims 1, 6–12, 17–23, and 25 under 35 U.S.C.
§ 112(a), written description requirement6
The Examiner finds the claim term “combining the images to form the
at least one image using a pixel to pixel alignment technique” lacks written
description support. Final Act. 6–7.

6 We note the Examiner rejected claims 1, 6–12, and 17–26 as lacking
written description support (Final Act 6), however claims 24 and 26 were
canceled.
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Appellant argues the Specification at paragraph 39 provides sufficient
written description support for someone of ordinary skill in the art to
appreciate that a pixel to pixel alignment technique may be formed by the
system or method. Appeal Br. 27–28, citing Spec. ¶ 39.
We note, the cited claim language must be given its broadest
reasonable interpretation consistent with Appellant's disclosure, as explained
in Morris:
[T]he PTO applies to the verbiage of the proposed claims the
broadest reasonable meaning of the words in their ordinary usage
as they would be understood by one of ordinary skill in the art,
taking into account whatever enlightenment by way of
definitions or otherwise that may be afforded by the written
description contained in the applicant's specification.
In re Morris, 127 F.3d 1048, 1054 (Fed. Cir. 1997); see also In re Zletz, 893
F.2d 319, 321 (Fed. Cir. 1989) (stating that “claims must be interpreted as
broadly as their terms reasonably allow.”). Our reviewing court further
states, “the ‘ordinary meaning’ of a claim term is its meaning to the ordinary
artisan after reading the entire patent.” Phillips v. AWH Corp., 415 F.3d
1303, 1321 (Fed. Cir. 2005) (en banc).
Although the written description requirement does not impose an “in
haec verba” recitation of the disputed claim language in the original
Specification, it nonetheless requires a sufficient description of the claimed
subject matter so as to enable one of ordinary skills in the art to make and
use the invention. In re Wright, 866 F. 2d 422, 425 (Fed. Cir 1989); see
Agilent Techs., Inc. v. Affymetrix, Inc., 567 F. 3d 1366, 1374 (Fed. Cir.
2009).
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Appellant’s arguments are persuasive of reversible Examiner error. To
satisfy the written description requirement, a patent Specification must
describe the claimed invention in sufficient detail that one skilled in the art
can reasonably conclude that the inventor had possession of the claimed
invention. Moba, B.V. v. Diamond Automation, Inc., 325 F.3d 1306, 1319
(Fed. Cir. 2003).
We do not agree with the Examiner that the Specification's disclosure
does not support the “pixel to pixel alignment technique.” Ans. 5–6. While
the Examiner acknowledges paragraph 39 of the Specification, the Examiner
does not specifically address the content of the cited paragraph, which
provides that, “[i]n a case having two images, the images may be registered,
which may include a pixel to pixel alignment to ensure that the images are
aligned with each other.” See Spec. ¶ 39.
We agree with Appellant that the ordinarily-skilled artisan would
readily appreciate that the portion of the Specification cited above supports
the notion of a pixel to pixel alignment technique. Accordingly, we agree
with Appellant that the originally-filed Specification adequately supports the
disputed limitations.
Because Appellant has demonstrated possession of the claim
recitation, we are persuaded of error in the Examiner's written description
rejection of claim 1. Accordingly, we do not sustain the written description
rejection of claim 1, and claims 6–12, 17–23, and 25, which recite
commensurate limitations.
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C. Obviousness Rejection of claims 1, 6–9, 11, 12, 17–22 under
35 U.S.C. § 103
Appellant argues one of ordinary skill in the art would not combine
the references Davis and Tu, while also conceding both references are
directed to gesture input using the claimed techniques. Appeal Br. 29.
We are not persuaded by Appellant’s arguments because Davis is
directed towards depth mapping, 3D imaging and modeling, wireless wrist
computing and display and control systems (See Davis, Abst, ¶¶ 2, 6, Figs.
3E and 3F), and Tu is directed towards depth map aligning using an aligning
method obtains a pixel to pixel residual difference of at least one pixel to
correct a depth value. See Tu ¶¶ 21, Figs. 2, 3, Ans. 6–7. Accordingly, we
agree with the Examiner that the proposed combination of the respective
cited features of Davis, Tu, Kim, and Adhikari would have led to a
predictable result--and thus it would have been obvious to one of ordinary
skill in the art to modify Davis’s depth mapping with Tu’s pixel to pixel
alignment techniques. See KSR Int'l Co. v. Teleflex Inc., 550 U.S. 398, 401
(2007) (“[A] combination of familiar elements according to known methods
is likely to be obvious when it does no more than yield predictable results.”).
“[W]hen a patent ‘simply arranges old elements with each performing the
same function it had been known to perform’ and yields no more than one
would expect from such an arrangement, the combination is obvious.” KSR,
550 U.S. at 417 (quoting Sakraida v. Ag Pro, Inc., 425 U.S. 273, 282
(1976)).
Further, in KSR, 550 U.S. at 418, the Court stated that when
considering obviousness that “the analysis need not seek out precise
teachings directed to the specific subject matter of the challenged claim, for
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a court can take account of the inferences and creative steps that a person of
ordinary skill in the art would employ.” When there is a design need or
market pressure to solve a problem and there are a finite number of
identified, predictable solutions, a person of ordinary skill has good reason
to pursue the known options within his or her technical grasp. See id. at 421.
Furthermore, for a prima facie case of obviousness to be established, the
reference need not recognize the same problem solved by the Appellant. See
In re Kemps, 97 F.3d 1427, 1430 (Fed. Cir. 1996). “[N]either the particular
motivation nor the avowed purpose of the [Appellant] controls” when
performing an obviousness analysis. KSR, 550 U.S. at 419 (2007).
This reasoning is applicable here. In reviewing the record, we are not
persuaded the Examiner erred because Appellant does not point to any
evidence of record that shows combining the teachings of the cited
references in the manner proffered by the Examiner (Final Act. 7–13) would
have been “uniquely challenging or difficult for one of ordinary skill in the
art” or would have “represented an unobvious step over the prior art.”
Leapfrog Enters., Inc. v. Fisher-Price, Inc., 485 F.3d 1157, 1162 (Fed. Cir.
2007) (citing KSR, 550 U.S. at 418).
Appellant has not identified knowledge gleaned only from the present
application that was not within the level of ordinary skill at the time the
claimed invention was made. See In re McLaughlin, 443 F.2d 1392 (CCPA
1971). Moreover, Appellant has not provided any objective indicia of non-
obviousness (e.g., unexpected results), which our reviewing court guides
“operates as a beneficial check on hindsight.” Cheese Sys., Inc. v. Tetra Pak
Cheese & Powder Sys., Inc., 725 F.3d 1341, 1352 (Fed. Cir. 2013).
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The Examiner has articulated reasoning for combining the prior art
teachings. See Final Act. 11 (“One of ordinary skill in the art would have
been motivated to have modified Davis with the teachings of Tu to have
performed an depth map aligning method using virtual view images of
different perspectives and a pixel to pixel technique so as to correct a depth
value.”). We find one of ordinary skill in the art would have understood that
optical depth mapping could be combined with a pixel to pixel alignment
technique. Thus, we find the Examiner set forth a sufficient rational
underpinning explaining why an artisan would have combined the teachings
of Davis and Tu. See Final Act. 11, Ans. 6–8.
Appellant further argues Davis, Tu, Kim and Adhikari fail to teach or
suggest the disputed limitation “forming, from the first set of depth and the
second set of depth data, at least one image associated with the gesture
performed by the user by creating an image from each of the first set of
depth data and the second set of depth data and combining the images to
form the at least one image,” as recited in claim 1. Appeal Br. 32.
While Appellant concedes Davis teaches optical depth mapping and
interfacing on wearable wireless wrist computing, specifically mapping of
the hand to dynamically monitor the hand for gesture interfacing, Appellant
argues that “mapping and modeling of the hand is not the same as
identifying the location of features with respect to other features or using
depth data of any kind, as per the claimed limitations.” Appeal Br. 32–33.
We agree with the Examiner’s findings because Davis’ wrist console
101 identifies the precise points of joints and creases on the top and bottom
of the hand and fingers for the purpose of the determining depth data for 3D
imaging and determines the depth of two or more focal points in the scene
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and determining the corresponding points in other images by matching
points and features in one image to corresponding points and features in
other images teach or at least suggest “forming, from the first set of depth
and the second set of depth data, at least one image associated with the
gesture performed by the user by creating an image from each of the first set
of depth data and the second set of depth data and combining the images to
form the at least one image by aligning the images using a pixel to pixel
alignment technique.” Davis ¶¶ 66–78, 105–108, Ans. 8–9.
Appellant acknowledges the Examiner relies on Tu to specifically
teach or suggest “the pixel to pixel alignment” limitation, but argues that
Tu’s alignment technique “may be differentiated from the present
disclosure.” Appeal Br. 33. We are not persuaded by this argument as
Appellant does not substantively explain why Tu does not teach or at least
suggest the disputed limitation. Id.
Appellant has not shown any persuasive evidence here that a
reasonable fact finder would not necessarily conclude Tu’s pixel to pixel
aligning method does not teach or at least suggest the “pixel to pixel
alignment technique,” as recited in claim 1. We are not persuaded by
Appellant’s attorney arguments.
Therefore, on this record, and based upon a preponderance of the
evidence, we are not persuaded of Examiner error and so we sustain the
Examiner's obviousness rejection of claim 1 and grouped claims 6–9, 11, 12,
and 17–22. We also sustain the Examiner’s separate obviousness rejection of
claims 10, 23, and 25 because Appellant does not present substantive
arguments regarding the limitations of these claims.
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VI. CONCLUSIONS
We reverse the Examiner’s rejection of claim 22 under 35 U.S.C.
§ 101.
We reverse the Examiner’s rejection of claims 1, 6–12, and 17–26
under 35 U.S.C. § 112(a), written description requirement.
We affirm the Examiner’s rejections under 35 U.S.C. § 103 of
claims 1, 6–12, 17–23, and 25.
VII. DECISION SUMMARY
In summary:
Claim(s)
Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed
22 101 Subject matter eligibility 22
1, 6–12,
17–23, 25 112(a) Written description
1, 6–12,
17–23, 25
1, 6–9, 11,
12, 17–22 103
Davis, Tu, Kim,
Adhikari
1, 6–9, 11,
12, 17–22
10, 23, 25 103 Davis, Tu, Kim, Adhikari, Jeong 10, 23, 25
Overall
Outcome
1, 6–12, 17–23, 25
Because we have affirmed at least one ground of rejection with
respect to each claim on appeal, the Examiner’s decision is affirmed. See
37 C.F.R. § 41.50(a)(1).
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VIII. TIME PERIOD FOR RESPONSE
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). See 37
C.F.R. § 41.50(f).
AFFIRMED