2020003213 (P.T.A.B. Oct. 27, 2021)

Sony Interactive Entertainment Inc.

Patent Trials and Appeals BoardOct 27, 2021

2020003213 (P.T.A.B. Oct. 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. 16/013,682 06/20/2018 Yutaka Yokokawa SCEA18008US00 2534 136155 7590 10/27/2021 ROGITZ & ASSOCIATES JOHN L. ROGITZ 4420 HOTEL CIRCLE COURT SUITE 230 SAN DIEGO, CA 92108 EXAMINER CHOWDHURY, AFROZA Y ART UNIT PAPER NUMBER 2628 NOTIFICATION DATE DELIVERY MODE 10/27/2021 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): John@rogitz.com SCEAPatentDocket@playstation.sony.com eofficeaction@appcoll.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte YUTAKA YOKOKAWA Appeal 2020-003213 Application 16/013,682 Technology Center 2600 Before ALLEN R. MACDONALD, MICHAEL J. STRAUSS, and ADAM J. PYONIN, Administrative Patent Judges. STRAUSS, Administrative Patent Judge. Appeal 2020-003213 Application 16/013,682 2 DECISION ON APPEAL STATEMENT OF THE CASE1 Pursuant to 35 U.S.C. § 134(a), Appellant2 appeals from the Examiner’s decision to reject claims 1–20. Final Act. 1. We have jurisdiction under 35 U.S.C. § 6(b). We reverse and enter a new ground of rejection.. CLAIMED SUBJECT MATTER “The application relates generally to gesture-based user interfaces (UI) for augmented reality (AR) and virtual reality (VR), potentially with gaze triggers.” Spec. 1 (Field). Claim 1, reproduced below, is illustrative: 1. A device comprising: at least one computer memory that is not a transitory signal and that comprises instructions executable by at least one processor to: present a three-dimensional (3D) object on at least one display, image a player’s appendage to render an emulated appendage, the emulated appendage having a gesture configuration as established by the player's appendage, the emulated appendage being different from the 3D object; responsive to the emulated appendage being at least partially within the 3D object, and responsive to the gesture 1 In this Decision, we refer to Appellant’s Appeal Brief filed January 9, 2020 (“Appeal Br.”) and Reply Brief filed March 23, 2020 (“Reply Br.”); the Examiner’s Final Office Action mailed October 18, 2019 (“Final Act.”) and Answer mailed March 5, 2020 (“Ans.”); and the Specification filed June 20, 2018 (“Spec.”). Rather than repeat the Examiner’s findings and Appellant’s contentions in their entirety, we refer to these documents. 2 “Appellant” refers to “applicant” as defined in 37 C.F.R. § 1.42(a). Appellant identifies the real party in interest as Sony Interactive Entertainment, Inc. Appeal Br. 2. Appeal 2020-003213 Application 16/013,682 3 configuration correlating to a command execute the command and; responsive to the emulated appendage not being at least partially within the 3D object, not execute the command. Appeal Br. 21 (Claims App.). REFERENCES AND REJECTIONS The Examiner relies on the following references: Name Reference Date Kutliroff et al. (“Kutliroff.”) US 2009/0085864 Al Apr. 2, 2009 Chen US 2015/0002391 Al Jan. 1, 2015 Cronholm US 2015/0220776 Al Aug. 6, 2015 The Examiner rejects claims 1–15 under 35 U.S.C. § 103 as obvious over the combined teachings of Kutliroff and Cronholm (Final Act. 3–12); and claims 16–20 under 35 U.S.C. § 103 as obvious over the combined teachings of Kutliroff, Cronholm, and Chen (Final Act. 12–16). ISSUE Does the Examiner err in finding the combination of references teaches or suggests the step of responsive to the emulated appendage being at least partially within the 3D object, and responsive to the gesture configuration correlating to a command execute the command, as recited in claim 1? ANALYSIS The Examiner rejects claim 1 as obvious over the combined teachings of Kutliroff and Cronholm. Final Act. 3–6. The Examiner relies upon Appeal 2020-003213 Application 16/013,682 4 Kutliroff’s disclosure of identifying a user’s gestures in an interactive game application for teaching all but one of the limitations of claim 1. Id. at 3–5 (citing Kutliroff ¶¶ 22, 28, 40–42; Fig. 5). The Examiner finds Kutliroff does not explicitly disclose the limitations of “responsive to the emulated appendage not being at least partially within the 3D object, not execute the command” as recited by claim 1. Id. at 5. Addressing the noted deficiency of Kutliroff, the Examiner finds Cronholm’s disclosure of removing false gestures or movements when identifying gestures made by an object in a video stream controller teaches or suggests the identified limitation. Id. at 5–6 (citing Cronholm ¶¶ 6, 121). According to the Examiner the skilled artisan would have “modif[ied] Kutliroff’s gesture classification device by incorporating Cronholm’s idea of removing (filtering) false movements (gestures) in order to improve gesture configuration capability.” Id. at 6. Appellant contends that, inter alia, “[n]either reference contemplates identifying an object, much less deciding whether to execute a command associated with a gesture based on whether an image of the user is within the object [as required by claim 1].” Appeal Br. 4. In particular, Appellant contends “the relied-upon subject matter of Kutliroff at most teaches constructing an initial library of gestures and then comparing subject user images to those gestures.” Id. at 6. Appellant further contends Cronholm “fail[s] to teach anything about executing a command or a 3D object in which an emulated appendage appears or not, [such that Cronholm] cannot possibly satisfy the admitted shortfall of Kutliroff.” Id. at 7. In response, the Examiner finds the disputed limitation is taught by Kutliroff’s disclosure of gesture recognition software used by interactive gaming applications, including sports programs such as computer baseball, Appeal 2020-003213 Application 16/013,682 5 football, tennis and soccer games, to provide a user with an interactive experience. Ans. 3–5 (citing Kutliroff, ¶¶ 28, 40–42, 43–44; Fig. 3). According to the Examiner User’s displayed gesture/movements (emulated appendage) must be at least partially within the 3D item/object in order to perform [an] interactive function, for example, throwing a ball during a baseball/football game. It is well known in the art that [a] user’s gesture must be correlated to a command to execute the command in order to perform a function, for example, throwing a ball and interact[ing] with multiple players within the virtual environment. Therefore, Kutliroff teaches executing an associated command depending on whether the emulated appendage is within an object as described above (Note: [the] claims require the emulated appendage being at least partially within the 30 object). Id. at 5. In reply, Appellant contends: The [Examiner’s allegation] that “User’s displayed gesture/ movements (emulated appendages) must be at least partially within the 3D item/object in order to perform interactive function (sic)”. . . is without logical or factual foundation. Nothing in the relied-upon subject matter supports it. The [E]xaminer keeps repeating a conjecture that can have been made only by viewing the reference through the prism of the instant claims. Nowhere in the relied-upon subject matter of Kutliroff is any consideration made as to deciding whether to execute an associated command depending on whether the emulated appendage is within an object or not. Reply Br. 2–3. We are persuaded by Appellant’s contentions because the Examiner fails to provide sufficient evidence or reasoning to show that Kutliroff teaches or suggests executing a command responsive to an emulated appendage being at least partially within the 3D object as recited by claim 1. Appeal 2020-003213 Application 16/013,682 6 Although Kutliroff discloses gesture recognition software has many applications including interactive gaming such as computer games of baseball, football, and soccer (Kutliroff ¶ 40), Kutliroff does not specifically disclose what type of gestures interact with particular objects in the virtual environment of those games. Even if Kutliroff had disclosed the actions posited by the Examiner, such as throwing a ball, we find insufficient basis for the Examiner’s further finding that such action would require the emulated appendage [be] within an object.” See Ans. 5 (emphasis added). Because we agree with at least one of the Appellant’s contentions of error, we do not reach the merits of Appellant’s other contentions. Accordingly, we do not sustain the rejection of independent claim 1, or the rejection of independent claims 10 and 16, which include language similar to the disputed limitation of claim 1 and are rejected for similar reasons. Nor do we sustain the rejection of dependent claims 2–9, 11–15, and 17–20, each of which stands with its respective base claim. NEW GROUND OF REJECTION We enter a new ground of rejection of independent claim 1 under 35 U.S.C. § 103 pursuant to our authority under 37 C.F.R. § 41.50(b) for the following reasons. Claim 1 is rejected on a new ground under 35 U.S.C. § 103(a) as unpatentable over Kutliroff and Cronholm further in view of Hilliges et al, US2014/0104274A13 published April 17, 2014 (“Hilliges”). We adopt as our own the Examiner’s findings regarding claim 1 (Final Act. 3–6) except, as discussed supra, neither Kutliroff nor Cronholm 3 Now U.S. Patent 9,552,673 issued January 24, 2017. Appeal 2020-003213 Application 16/013,682 7 teach or suggest the argued step of executing a command “responsive to the emulated appendage being at least partially within the 3D object.” Thus, we do not rely on Kutliroff or Cronholm for this limitation. Hilliges, however, in an analogous art, teaches this limitation. Hilliges ¶ 23 (“[K]inematic particle may have a 3D position which is within a virtual object. (Where a user has no haptic feedback he or she is unable to feel the surface of a virtual object and may put his or her fingers into the virtual object when trying to grasp it.));” Fig. 1 (depicting a user’s virtual hand partially within virtual spherical object 114); Fig. 3 (depicting a user’s virtual hand 300 partially within virtual cube 304). Thus, Hilliges’ disclosure of grasping and manipulating a virtual 3-D object (i.e., executing a command when a user’s hand is partially within a sphere or cube) teaches or suggests the argued step. In particular, Hilliges teaches or suggests the following elements of claim 1 1. A device comprising (Hilliges’s interactive 3D computer graphic system) at least one computer memory (Memory 1016 – ¶¶ 70, Fig. 10) that is not a transitory signal and that comprises instructions (operating system 1104, application software 1006, physics simulator 1008, 3D tracker 1010, virtual object controller 1612) executable by at least one processor ((computer instructions executable by processor 1002 – ¶¶ 70, Fig. 10) to: present a three-dimensional (3D) object on at least one display (virtual objects 112, 114 present in virtual environment 102, e.g. a virtual sphere grasped by a user – ¶ 26; objects represented in a 3D display including “rigid 3D shape(s) such as spheres, ellipsoids, or other 3D shapes – ¶¶ 22–23), image a player’s appendage (user’s hand 108 – Fig. 1, ¶ 26) to render an emulated appendage (unlabeled hand depicted in 3D virtual environment 102 displayed on display Appeal 2020-003213 Application 16/013,682 8 device 104 – Fig. 1, ¶¶ 24), the emulated appendage having a gesture configuration as established by the player's appendage (Input/output controller 1015 may detect user gestures to provide a natural user interface (NUI) – ¶¶ 71, 73), the emulated appendage being different from the 3D object (user’s virtual hand is depicted differently than spherical virtual objects 112, 114 as shown in Fig. 1); responsive to the emulated appendage being at least partially within the 3D object, and responsive to the gesture configuration (the thumb and fingers of the hand 404 penetrate the virtual cube 400 while a user’s hand reaches for and grasps the virtual cube - ¶¶ 42, Fig. 4; Fig. 1 depicting user’s virtual hand partially within virtual 3-D object 114) correlating to a command execute the command (position of a virtual object is calculated when user grasps the virtual object – claim 16; user grasping of objects allows user to manipulate their position and orientation ¶ 41) and; responsive to the emulated appendage not being at least partially within the 3D object, not execute the command (griping action that does not contact virtual object does not enable movement of the object). Kutliroff in view of Cronholm teaches interactive sports programs (such as baseball), and it would have been obvious to one of ordinary skill in the art at the time of the invention to modify Kutliroff and Cronholm to include the teaching of Hilliges to “enabl[e] 3D interaction between a user and a 3D virtual environment in a manner that enables grasping of virtual objects in a natural and realistic manner and yet is computationally efficient.” See Kutliroff ¶ 40; Hilliges ¶ 23. Remaining claims Although we have rejected independent claim 1 under 37 C.F.R. § 41.50(b), we have not reviewed the remaining claims to the extent necessary to determine whether these claims are unpatentable under Appeal 2020-003213 Application 16/013,682 9 35 U.S.C. § 103. We leave it to the Examiner to determine the appropriateness of any further rejections based thereon. CONCLUSION We reverse the Examiner’s rejections of claims 1–15 under 35 U.S.C. § 103 as obvious over the combined teachings of Kutliroff and Cronholm; and claims 16–20 under 35 U.S.C. § 103 as obvious over the combined teachings of Kutliroff, Cronholm, and Chen. Pursuant to our discretionary authority under 37 C.F.R. § 41.50(b), we newly reject claim 1 under 35 U.S.C. § 103 as obvious over the combined teachings of Kutliroff, Cronholm, and Hilliges. DECISION SUMMARY In summary: Claim(s) Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed New Ground 1–15 103 Kutliroff, Cronholm 1–15 16–20 103 Kutliroff, Cronholm, Chen 16–20 1 103 Kutliroff, Cronholm, Hilliges 1 Overall Outcome 1–20 1 TIME PERIOD FOR RESPONSE This Decision contains a new ground of rejection pursuant to 37 C.F.R. § 41.50(b). 37 C.F.R. § 41.50(b) provides “[a] new ground of Appeal 2020-003213 Application 16/013,682 10 rejection pursuant to this paragraph shall not be considered final for judicial review.” 37 C.F.R. § 41.50(b) also provides that the Appellant, WITHIN TWO MONTHS FROM THE DATE OF THE DECISION, must exercise one of the following two options with respect to the new ground of rejection to avoid termination of the appeal as to the rejected claims: (1) Reopen prosecution. Submit an appropriate amendment of the claims so rejected or new Evidence relating to the claims so rejected, or both, and have the matter reconsidered by the examiner, in which event the proceeding will be remanded to the examiner. . . . (2) Request rehearing. Request that the proceeding be reheard under § 41.52 by the Board upon the same Record. . . . Further guidance on responding to a new ground of rejection can be found in the Manual of Patent Examining Procedure § 1214.01. No time period for taking any 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). REVERSED; 37 C.F.R. § 41.50(b)