Luong, Bruno

Patent Trials and Appeals Board

Feb 3, 2020

13883377 - (D) (P.T.A.B. Feb. 3, 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.
13/883,377 07/29/2013 Bruno Luong 758812000300 3631
160992 7590 02/03/2020
Kubota & Basol LLP
445 S. Figueroa Street
Suite 2140
Los Angeles, CA 90071
EXAMINER
RITCHIE, DARLENE M
ART UNIT PAPER NUMBER
2628
NOTIFICATION DATE DELIVERY MODE
02/03/2020 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):
docket@kuba-law.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________________

Ex parte BRUNO LUONG
____________________

Appeal 2019-001602
Application 13/883,377
Technology Center 2600
____________________
Before JAMES B. ARPIN, PHILLIP A. BENNETT, and
IFTIKHAR AHMED, Administrative Patent Judges.
AHMED, Administrative Patent Judge.
DECISION ON APPEAL
Appellant1 appeals under 35 U.S.C. § 134(a) from a final rejection of
claims 1 and 3–15, all of the pending claims. Claim 2 has been cancelled.
We have jurisdiction under 35 U.S.C. § 6(b).
We affirm-in-part.
Technology
The application relates to “a method for detecting objects of interest in
a disturbed environment, applicable to gesture interfaces,” and to “a gesture
interface device implementing the method.” Spec., 1.

1 We use the word “Appellant” to refer to “applicant” as defined in 37
C.F.R. § 1.42(a). According to Appellant, the real party-in-interest is
Quickstep Technologies LLC. Appeal Br. 2.
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Illustrative Claim
Claim 1 is illustrative and reproduced below with certain limitations at
issue emphasized:
1. A method for detecting one or several objects of interest
moving in an environment, comprising:
- implementing at least one measurement electrode
in capacitive coupling with said one or several objects of
interest and with one or more other disturbing objects
present in the environment;
- for each measurement electrode, measuring a total
capacitance between said measurement electrode and said
environment, including a capacitance of interest due to
said one or several objects of interest and a leakage
capacitance due to said one or more disturbing objects;
- storing said total capacitance for each
measurement electrode; and
- for each measurement electrode,
selecting a minimum stored total capacitance
measurement within a history of measurements of
previously stored total capacitance measurements
for said measurement electrode including total
capacitances measured during a sliding time
window of a predetermined duration by identifying
a smallest of the individual stored total
capacitance measurements, wherein the history of
measurements retain only those total capacitances
measured during the sliding time window,
equating the leakage capacitance to said selected
minimum stored total capacitance measurement,
calculating the capacitance of interest by
subtracting said leakage capacitance from the total
measured capacitance, and
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processing said thus-calculated capacitance of
interest so as to produce detection information for
said one or several objects of interest.
REJECTIONS
Claims 1, 6, 8–10, and 14 stand rejected under 35 U.S.C. § 103(a) as
obvious over the combined teachings of Sinclair (US 2009/0128511 A1;
May 21, 2009), Noguchi (US 2011/0267296 A1; Nov. 3, 2011), and Kent
(US 2012/0162123 A1; June 28, 2012). Final Act. 3.
Claims 3–5 stand rejected under 35 U.S.C. § 103(a) as obvious over
the combined teachings of Sinclair, Noguchi, Kent, and Wu (US
2010/0214253 A1; Aug. 26, 2010). Final Act. 11.
Claim 7 stands rejected under 35 U.S.C. § 103(a) as obvious over the
combined teachings of Sinclair, Noguchi, Kent, and Lemire (Daniel Lemire,
Streaming Maximum-Minimum Filter Using No More Than Three
Comparisons Per Element (2007), available at
http://arxiv.org/pdf/cs/0610046v5.pdf (last viewed January 28, 2020)). Final
Act. 15.
Claims 11–13 and 15 stand rejected under 35 U.S.C. § 103(a) as
obvious over the combined teachings of Sinclair, Noguchi, Kent, and
Hotelling (US 8,432,371 B2; Apr. 30, 2013). Final Act. 16.
ISSUES
1. Did the Examiner err in finding that the combined teachings of
Sinclair and Noguchi teach or suggest “selecting a minimum
stored total capacitance measurement within a history of
measurements of previously stored total capacitance
measurements for said measurement electrode including total
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capacitances measured during a sliding time window of a
predetermined duration by identifying a smallest of the
individual stored total capacitance measurements, wherein the
history of measurements retain only those total capacitances
measured during the sliding time window” and “equating the
leakage capacitance to said selected minimum stored total
capacitance measurement,” as recited in claim 1?
2. Did the Examiner err in finding that the combined teachings of
Sinclair and Wu teach or suggest “the predetermined duration is
determined as being higher than a mean presence duration of
the one or several objects of interest in a vicinity of the at least
one measurement electrode,” as recited in claim 3?
3. Did the Examiner err in finding that Kent teaches or suggests
“gathering latest stored measurements as a time sub-window
having a duration lower than the sliding time window,” as
recited in claim 6?
ANALYSIS
§ 103(a) Rejection of Claims 1, 4, 5, 7–15
Independent claim 1 recites the following limitations:
selecting a minimum stored total capacitance measurement
within a history of measurements of previously stored total
capacitance measurements for said measurement electrode
including total capacitances measured during a sliding time
window of a predetermined duration by identifying a smallest of
the individual stored total capacitance measurements, wherein
the history of measurements retain only those total capacitances
measured during the sliding time window;
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equating the leakage capacitance to said determined minimum
stored total capacitance measurement.”
Appeal Br. 16, 18 (Claims App.) (emphasis added). The Examiner finds that
the combined teachings of Sinclair and Noguchi teach or suggest these
limitations. Final Act. 6–7. The Examiner determines that Sinclair teaches
storing a running statistical relation of low capacitance values for each
capacitive sensor, corresponding to a running relation or sliding time
window of low or minimum capacitance values over time. Id. at 6 (citing
Sinclair ¶ 33, Fig. 8, step 426). The Examiner further determines that
Sinclair discloses examples of such a statistical relation as including
“averages, means, modes, standard deviations and etc[.],” and that the
minimum capacitance value is considered the leakage capacitance by
Sinclair. Id. (citing Sinclair ¶¶ 31, 34, Fig. 7).
The Examiner finds that the statistical relation of Sinclair does not
however specify the smallest minimum, and teaches “storing only one
average minimum value for each electrode instead of storing a history of
values for each electrode.” Id. at 7. The Examiner determines that this
missing aspect of Sinclair is taught by Noguchi, which discloses “obtain[ing]
a minimum of a magnitude . . . of a sum of the touch component and the
noise component in a detection signal for each of the touch detection
electrodes TDL, and select[ing] one of those minimum values in which the
magnitude of the sum of the touch component and the noise component is
the smallest.” Id. (emphasis added, underlining omitted) (citing Noguchi
¶¶ 15, 118, Fig. 13). The Examiner determines that “[i]t would have been
obvious to substitute taking the average of the minimum values taught by
Sinclair with taking the smallest of the minimum values taught by Noguchi,”
because “the method is used interchangeably in the art.” Id. at 8.
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Appellant asserts that “the statistical relation of Sinclair does not
specify the smallest minimum value but suggests rather an average of
minimum values.” Appeal Br. 6 (citing Final Act. 7). Appellant argues that
Noguchi also is deficient because it discloses a “‘maximum value selecting
circuit’ for receiving the minimum detection signal for all of the touch
detection electrodes, and generating a single value which represents the
smallest of those received signals.” Appeal Br. 6 (citing Noguchi ¶ 118, Fig.
13). Appellant asserts that “Noguchi then teaches subtracting this single
value from the detection signals for each touch detection electrode,” i.e.,
“each of the touch detection electrodes in Noguchi will have the same value
subtracted from it” and “in most cases the value subtracted from a touch
detection electrode in Noguchi will not be the minimum detection signal for
that particular electrode.” Id. at 7 (citing Noguchi, Fig. 13). Claim 1, on
the other hand, Appellant argues, “requires that the leakage capacitance
subtracted from each measurement electrode is the minimum stored total
capacitance measurement for that particular electrode.” Id.
The Examiner responds that “Sinclair teaches a very similar operation
of storing ‘a running statistical relation of low capacitance values’ for each
measurement electrode . . . where ‘low’ [can be] interpreted as ‘minimum.’”
Ans. 4 (citing Sinclair ¶ 33, Fig. 8). The Examiner finds that, in view of
Noguchi’s teachings, a person of ordinary skill in the art “would have
arrived at exchanging a ‘statistical relation’ of low values for a minimum
value.” Id. at 5 (emphasis added). The Examiner points out that Noguchi
explicitly states that
As an alternative embodiment, . . . the maximum value
calculating section 44B obtains a minimum of a magnitude (or
an absolute value) of a sum of the touch component and the noise
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component in a detection signal for each of the touch detection
electrodes TDL, and selects one of those minimum values in
which the magnitude of the sum of the touch component and the
noise component is the smallest.
Id. (quoting Noguchi ¶ 118).
Moreover, the Examiner determines, one of ordinary skill in the art
would have understood Sinclair itself as teaching the use of a smallest
minimum value rather than an average value because, given the exemplary
list of “low” values or measures disclosed in Sinclair, “[i]t would have been
obvious to try with the expected result that [the smallest] minimum values
would have still provided useful representations of background noise.” Id. at
6 (citing Sinclair ¶ 31).
We are not persuaded that the Examiner has erred. Contrary to
Appellant’s assertion (Reply Br. 2–3), Sinclair does not limit the minimum
capacitance value to just an average or mean of the multiple capacitance
values collected. Instead, Sinclair states that “[e]xample statistical relations
that can be used for . . . low capacitance values include averages, means,
modes, standard deviations and etc.” Sinclair ¶ 33 (emphasis added). We
are not persuaded that this statement is a clear limitation on the types of
values taught by Sinclair. Instead, Sinclair provides a non-exhaustive list of
examples of measures that may be used based on the capacitance values
collected from each capacitive sensor. Id.
We are also not persuaded of error in the Examiner’s determination
that “one of ordinary skill in the art would have been able to substitute the
operation of taking the [lowest] minimum value [as taught by Noguchi] for
the average of the minimum values [as taught by Sinclair],” that is that a
person of ordinary skill in the art would have found these alternatives.
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Ans. 5. Appellant alleges Noguchi’s teaching is limited to generating a
single minimum value for all of the touch detection electrodes, and not each
electrode, as recited in claim 1. Appeal Br. 7 (citing Noguchi, Fig. 13).
However, Appellant does not address the rejection as articulated, in which
the Examiner relies on certain combined teachings of the prior art. See In re
Keller, 642 F.2d 413, 425 (CCPA 1981) (“[T]he test [for obviousness] is
what the combined teachings of the references would have suggested to
those of ordinary skill in the art.”); see also In re Merck & Co., 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.”). Here, the Examiner relies on
the combined teachings of Sinclair and Noguchi to teach or suggest to one of
ordinary skill in the art the use of the smallest capacitance value collected as
the minimum value. Ans. 5. Appellant does not dispute that Noguchi
teaches “generating a single value which represents the smallest of th[e]
received signals” (Appeal Br. 6), which is the teaching from Noguchi, upon
which the Examiner relies. Final Act. 7–8 (citing Noguchi ¶ 118, Fig. 13).
Therefore, we are not persuaded of error in the Examiner’s determination
that the combined teachings of Sinclair and Noguchi teach or suggest the
selecting limitation, as recited in claim 1.
Teaching Away
Appellant further argues that “the Examiner has improperly combined
Sinclair and Noguchi, because the [E]xaminer has focused on the teachings
of Noguchi and has failed to consider that Sinclair explicitly teaches away
from using a minimum capacitance value as a leakage capacitance to be
subtracted from the total measured capacitance.” Appeal Br. 8–9. Appellant
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contends that “Sinclair warns that it is ‘not sufficient’ to simply subtract a
single minimum collected capacitance value from the averaged raw
capacitance values due to possible errors introduced by nearby objects, aging
or the environment.” Id. at 9 (quoting Sinclair ¶ 32). According to
Appellant, “instead of using a single minimum capacitance value, Sinclair
teaches storing a running statistical relation (e.g., an average, mean, mode,
standard deviation) of low capacitance values for each capacitive sensor,
and selecting the statistical relation of low values as the minimum
capacitance value.” Id. Appellant asserts that “using single minimum
capacitance values is not described as an alternative – it is criticized as being
‘not sufficient’ and prone to causing inaccuracies and errors,” and “Sinclair
therefore explicitly teaches away from subtracting a single minimum
capacitance value from each averaged raw capacitance value.” Id.; see also
Reply Br. 3–4.
The Examiner responds that Sinclair “indicates that the minimum
value needs to be updated due to changes in the environment, [because] ‘the
minimum capacitance value will drift over time due to temperature,
moisture . . . .’” Ans. 7 (citing Sinclair ¶ 32). The Examiner, therefore,
determines that “Sinclair teaches both using a minimum value and also
updating the minimum value, but does not teach away from taking a
minimum value in the first place.” Id. The Examiner further determines that
“Sinclair does not explicitly state that average minimum values cannot be
replaced with minimum values as taught in the alternative by Noguchi.” Id.
at 7–8.
We are not persuaded that the Examiner has erred. A reference
teaches away from a claimed invention if it criticizes, discredits, or
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otherwise discourages modifying the reference to arrive at the claimed
invention. In re Fulton, 391 F.3d 1195, 1201 (Fed. Cir. 2004). We will not,
however, “read into a reference a teaching away from a process where no
such language exists.” DyStar Textilfarben GmbH & Co. Deutschland KG
v. C.H. Patrick Co., 464 F.3d 1356, 1364 (Fed. Cir. 2006); Polaris Indus.,
Inc. v. Arctic Cat, Inc., 882 F.3d 1056, 1068–70 (Fed. Cir. 2018). “Under
the proper legal standard, a reference will teach away when it suggests that
the developments flowing from its disclosures are unlikely to produce the
objective of the applicant’s invention.” Syntex (U.S.A) LLC v. Apotex, Inc.,
407 F.3d 1371, 1380 (Fed. Cir. 2005) (citing In re Gurley, 27 F.3d 551, 553
(Fed. Cir. 1994)).
Appellant’s teaching away argument relies on a single statement from
Sinclair read out of context. Contrary to Appellant’s assertion (Appeal
Br. 9), Sinclair does not criticize using a single minimum capacitance value
as never being sufficient. Instead, Sinclair cautions against the use of all
“capacitance values of each capacitive sensor when the device is turned on,”
i.e., in a very limited circumstance. Sinclair ¶ 32 (emphasis added). The
next sentence explains the reason: “When input device 104 is turned on,
there can be some conductive object in close proximity that will generate a
high capacitance value.” Id. (emphasis added). Thus, Sinclair’s caution
does not apply to a person of ordinary skill seeking to replace Sinclair’s
minimum value with the lowest value, as taught by Noguchi, because
Noguchi’s system already ignores such high capacitance values. See
Noguchi ¶ 118. We also agree with the Examiner’s determination that
Sinclair’s guidance that the minimum capacitance value track changes over
time due to temperature, moisture, aging and other factors is not very
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different from Applicant’s own Specification instructing that leakage
capacitance assessment needs to be continuously updated to take into
account changes in the environment. Ans. 7 (citing Spec, 8:30–32).
Therefore, we are not persuaded that Sinclair criticizes, discredits, or
otherwise discourages modifying its teachings in the manner determined by
the Examiner to arrive at the claimed invention. See Fulton, 391 F.3d at
1201; see also Syntex, 407 F.3d at 1380 (explaining that “a prior art
reference that does not specifically refer to one element of a combination
does not, per se, teach away” because, if that were the case, “only references
that anticipate could be used to support an obviousness analysis”).
Thus, we agree with the Examiner that the combined teachings of
Sinclair and Noguchi teach or suggest “selecting a minimum stored total
capacitance measurement within a history of measurements of previously
stored total capacitance measurements for said measurement electrode
including total capacitances measured during a sliding time window of a
predetermined duration by identifying a smallest of the individual stored
total capacitance measurements, wherein the history of measurements retain
only those total capacitances measured during the sliding time window,” and
“equating the leakage capacitance to said selected minimum stored total
capacitance measurement,” as recited in claim 1. Because Appellant does
not separately argue the Examiner’s rejections of independent claim 11, or
of dependent claims 4, 5, 7–10, and 12–15 (see Appeal Br. 11, 13–14), we
sustain the Examiner’s obviousness rejections of claims 1, 4, 5, and 7–15.
§ 103(a) Rejection of Claim 3
Claim 3 depends from independent claim 1 and further recites “the
predetermined duration is determined as being higher than a mean presence
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duration of the one or several objects of interest in a vicinity of the at least
one measurement electrode.” Appeal Br. 16. The Examiner finds this
limitation taught by Wu because Wu discloses that
while the touch panel is in the proximity state, the counting unit
240 executes a count of a longer time (for example, the second
presetting time is 10 seconds), and while the touch panel is
switched from the proximity state to the contact state, the
counting unit 240 is controlled by the control signal CON3, so as
to reset the count of the second presetting time to prevent the
erroneous drift compensation.
Final Act. 12 (citing Wu ¶ 31, Fig. 2B). The Examiner further determines
that the “duration of the sliding time window T21 – T25 is made higher than
that of time window T22 which corresponds to a sensed presence duration of
an object of interest in the vicinity of the measurement electrode in order to
prevent erroneous drift compensation.” Id.; see also Ans. 10.
Appellant argues that Wu “only describes varying the duration of the
operation of a counting unit depending on whether the unit is in a proximity
state or a contact state.” Appeal Br. 12–13. According to Appellant,
“[t]here is no discussion [in Wu] of duration being based on the duration of
objects of interest in the vicinity of the measurement electrode.” Id. at 13.
Moreover, Appellant argues, “Wu is directed to compensation for measured
capacitances on a touch panel when drift in those capacitances is detected,”
and “is completely silent as to subtracting a minimum storage total
capacitance measurement (a leakage capacitance) for a particular electrode
from the measurements from that electrode, as required by claim 1.” Id.
at 12.
We agree with Appellant that the Examiner has not sufficiently
explained how Wu teaches or suggests this claim limitation, and specifically
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a “predetermined duration [being] determined as being higher than a mean
presence duration of the one or several objects of interest in a vicinity of the
at least one measurement electrode.” Although we agree with the Examiner
that Wu discloses tracking the duration when its touch panel is in the contact
state and compensating the capacitance accordingly, and Wu discloses that
the touch panel switches to be in different states with different time periods
due to different operations (Wu ¶¶ 31–37, Fig. 2B), the Examiner fails to
explain sufficiently how that disclosure teaches or suggests determining a
duration that is higher than the mean presence duration of an object in the
vicinity of Wu’s touch panel. We are persuaded of error in the Examiner’s
finding that tracking the duration for which an object approaches the touch
panel teaches or suggests determination of a mean presence duration of
objects of interest. Ans. 10. Nor does Sinclair’s disclosure of “a
measurement duration time that is long enough to avoid unnecessary spikes
due to noise” (id. at 9) teach or suggest determination of the claimed mean
presence duration.
Thus, we agree with Appellant that the Examiner has not shown that
the combined teachings of Sinclair and Wu teach or suggest a
“predetermined duration is determined as being higher than a mean presence
duration of the one or several objects of interest in a vicinity of the at least
one measurement electrode,” as recited in claim 3. The Examiner also does
not rely on Noguchi or Kent to teach or suggest this claim limitation in
support of the obviousness rejection based on Sinclair, Noguchi, Kent, and
Wu. Accordingly, given the record before us, we do not sustain the
Examiner’s rejection of claim 3.
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§ 103(a) Rejection of Claim 6
Claim 6 depends from independent claim 1 and further recites
“gathering latest stored measurements as a time sub-window having a
duration lower than the sliding time window.” Appeal Br. 17. The
Examiner finds this limitation taught by Kent because it discloses that “the
last 10 or a different number of samples 720 may be stored,” and the
“number of samples 720 stored may be limited by the amount of storage
available for storing samples 720.” Final Act. 9 (citing Kent ¶ 47)
(emphasis added). The Examiner determines that “if the amount of storage
available is lower, then a smaller sliding time window would be used as a
time sub-window.” Id.; see also Ans. 8–9.
Appellant argues that Kent “only describes storing a finite number of
samples in memory,” and “[t]here is no discussion of sub-windows.”
Appeal Br. 11; Reply Br. 4.
We are persuaded that the Examiner has erred. The Examiner
determines that, because claim 6 does not recite that “the sliding window can
be divided into sub-windows,” under the broadest reasonable interpretation,
a single time sub-window which is smaller than the sliding time window
suffices to teach the limitation. Ans. 8. The Examiner, however, fails to
explain sufficiently how Kent’s disclosure of storing a limited number of
samples (Kent ¶ 47) teaches or suggests even a single time sub-window that
is smaller than the sliding time window. We are not persuaded by the
Examiner’s findings that lowering the amount of storage in Kent would
result in the creation of a sub-window (Final Act. 9) rather than simply
reducing the size of the window disclosed in Kent’s system.
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Thus, we agree with Appellant that the Examiner has not shown that
Kent teaches or suggests a “gathering latest stored measurements as a time
sub-window having a duration lower than the sliding time window,” as
recited in claim 6. The Examiner also does not rely on Sinclair or Noguchi
to teach or suggest this claim limitation in support of the obviousness
rejection based on Sinclair, Noguchi, and Kent. Accordingly, given the
record before us, we do not sustain the Examiner’s rejection of claim 6.
CONCLUSION
For the reasons above, we affirm the Examiner’s decision rejecting
claims 1, 4, 5, and 7–15 under § 103(a), but reverse the Examiner’s decision
rejecting claims 3 and 6 under § 103(a).
In summary:
Claims
Rejected
35 U.S.C. § References Affirmed Reversed
1, 6, 8–10,
14
103(a) Sinclair, Noguchi, Kent 1, 8–10, 14 6
3–5 103(a) Sinclair, Noguchi,
Kent, Wu
4, 5 3
7 103(a) Sinclair, Noguchi,
Kent, Lemire
7
11–13, 15 103(a) Sinclair, Noguchi,
Kent, Hotelling
11–13, 15
Overall
Outcome
1, 4, 5, 7–
15
3, 6
TIME TO RESPOND
No time 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. § 41.50(f).
AFFIRMED-IN-PART