VOLKSWAGEN AKTIENGESELLSCHAFTDownload PDFPatent Trials and Appeals BoardOct 1, 20212020002611 (P.T.A.B. Oct. 1, 2021) Copy Citation 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. 15/435,126 02/16/2017 Thomas Schwarz VW-1015 (K22643US) 2149 130217 7590 10/01/2021 LOZA & LOZA, LLP Peter Zura, Esq. 305 N. Second Ave. #127 Upland, CA 91786 EXAMINER LAMB, CHRISTOPHER RAY ART UNIT PAPER NUMBER 2694 NOTIFICATION DATE DELIVERY MODE 10/01/2021 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): docketing@lozaip.com peter@lozaip.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte THOMAS SCHWARZ Appeal 2019-002611 Application 15/435,126 Technology Center 2600 Before CARL W. WHITEHEAD JR., ERIC S. FRAHM, and DAVID M. KOHUT, Administrative Patent Judges. PER CURIAM DECISION ON APPEAL Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the Examiner’s decision to reject claims 14–33. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM-IN-PART. 1 We use “Appellant” to reference the applicant as defined in 37 C.F.R. § 1.42. Appellant identifies the real party in interest as “Volkswagen Aktiengesellschaft.” Appeal Br. 2. Appeal 2019-002611 Application 15/435,126 2 STATEMENT OF THE CASE Appellant’s Invention “The present invention relates to . . . classifying a user gesture performed freely in space (also: ‘3D gesture’)” and, “[i]n particular, … to the differentiation between input gestures and return gestures.” Spec. 1. Claim 14, reproduced below, is illustrative of argued subject matter. 14. A processor-based method for detecting an input for a device, comprising: detecting, via a sensing apparatus, a first gesture in a detection area for the device; detecting, via a sensing apparatus, a second gesture in the detection area for the device, wherein the first gesture and second gesture are detected chronologically in a time period; comparing, via an evaluation unit, at least one characteristic comprising a curvature of a trajectory of the first gesture to at least one characteristic of the second gesture; and detecting, via a processor, a predetermined user input for the device based on the comparing of the at least one characteristic of the first gesture to the at least one characteristic of the second gesture. Appeal Br. 15. Rejection Claims 14–33 stand rejected under 35 U.S.C. § 103 as being unpatentable over Alameh (US 2014/0078318 A1; Mar. 20, 2014) and Reville (US 2011/0289455 A1; Nov. 24, 2011). Final Act. 2–5. Appeal 2019-002611 Application 15/435,126 3 OPINION Claims 14, 15, and 17–33 Appellant addresses claims 14, 15, and 17–33 collectively. See Appeal Br. 13. We select claim 14 as representative. 37 C.F.R. § 41.37(c)(1)(iv). For the following reasons, we are unpersuaded of error in the rejection of claim 14. We therefore sustain the Examiner’s decision to reject claims 14, 15, and 17–33. All claims are rejected as obvious over Alameh and Reville. Before addressing Appellant’s specific contentions, we present the pertinent applied teachings of Alameh and Reville. Alameh teaches a comparison of slide gestures. Alameh ¶ 95. For ease of discussion, “first-gesture” herein references the slide gesture whereby an open-hand is waved approximately along a first direction of an xy-plane parallel to a display plane (e.g., a right-to-left 〈-x, 0〉 vector). Id. ¶¶ 95, 159–61. “Return-gesture” herein references the slide gesture whereby, immediately after the first-gesture, the same open-hand is waved approximately along the opposite direction (e.g., a left-to-right 〈+x, 0〉 vector). Id. The gestures are compared to determine whether only the first-gesture should be input (e.g., to scroll in only the corresponding right-to-left direction) or both gestures should be input (e.g., to scroll in the right-to-left direction and then in the opposite left-to-right direction). Id. ¶¶ 155, 159–61. For example, the respective durations or speeds of the gestures are measured, the sameness of the measurements is determined, and the return-gesture is ignored if the measurements differ by a threshold value. Id. ¶¶ 159–61. Appeal 2019-002611 Application 15/435,126 4 Reville also teaches a first-gesture and return-gesture. Reville ¶ 137; Fig. 12. The first-gesture waves the hand approximately along a first direction parallel to a display plane. Id. The return-gesture occurs immediately after the first-gesture and waves the hand approximately along the opposite direction. Id. Z-values of the gestures (i.e., orthogonal distances of the hand from the display-plane during the gestures) are measured to determine if a gesture will be ignored. Id. The first-gesture slides parallel to the display plane (i.e., full extension while sliding from position 704 to position 706) and is therefore ignored if the respective z-value indicates the gesture was not extended away from the body (i.e., towards the display plane). Id. The return-gesture typically retracts a little (i.e., some retraction occurs while sliding from position 706 to position 704) but should also be parallel to the display plane and is therefore ignored if the respective z-value indicates the gesture did not maintain a minimum extension-distance from the body. Id. The Alameh-Reville combination adds Reville’s above teaching to Alameh’s above teachings. Final Act. 3; Ans. 6–8. Thus, as in Alameh, the combination ignores the return-gesture if the first-gesture and return-gesture are not sufficiently similar with regard to a measured characteristic (e.g., if their durations or speeds differ by a threshold amount). Id. In view of Reville, the combination ignores the return-gesture if the first-gesture and return-gesture are not sufficiently similar with regard to their measured z-axis values. Id. Appellant contends the references do not teach or suggest the claimed “comparing . . . at least one characteristic comprising a curvature of a trajectory of the first gesture to at least one characteristic of the second Appeal 2019-002611 Application 15/435,126 5 gesture.” Appeal Br. 9. Specifically, Appellant contends “Alameh merely compares slide durations to a fixed threshold.” Id. at 10; see also id. at 11. Appellant further contends “Reville teaches that movements in the x, y, and z directions[ are] defined by ‘the joints and bones of the tracked model’ and the combination of body parts relative to each other.” Id. at 12 (citing Reville ¶¶ 95–97). We are unpersuaded of Examiner error for each of two reasons. First, Appellant does not address the Alameh-Reville combination nor even dispute that the combination compares, as claimed, a “characteristic comprising a curvature of a trajectory of [a] first gesture to [a] characteristic of [a] second gesture.” Rather, Appellant contends: Alameh compares only the durations of a first-gesture and return-gesture; and, therefore, Alameh does not compare a curvature of the first-gesture’s motion2 and a characteristic of a return-gesture. Id. at 10–11. Appellant also explains how Reville describes the monitored motions of gestures. Id. at 12. These are not contentions that the combination fails to compare a curvature of the first gesture’s motion and a characteristic of the return-gesture. Such an argument is required to distinguish the claimed comparison over the combination because, here, the claimed comparison is read on the combination. Final Act. 3; see also In re Merck & Co., Inc., 800 F.2d 1091, 1097 (Fed. Cir. 1986) (“Non-obviousness cannot be established by attacking 2 We will, consistent with the Examiner’s apparent claim construction, and for purposes of facilitating prosecution, assume (arguendo) that the claimed “characteristic comprising a curvature of a trajectory of [a] first gesture” is the curvature of the first gesture’s motion. However, we make no such determination. Appeal 2019-002611 Application 15/435,126 6 references individually where the rejection is based upon the teachings of a combination of references.”). Second, even assuming (arguendo) Appellant contends the Alameh-Reville combination does not perform the claimed comparison, we disagree with that contention. We rather agree with the Examiner’s determination that, in view of Alameh and Reville, it would have been obvious to compare the curvatures of the first-gesture’s motion and return-gesture’s motion. See supra 3–4 (explaining the applied teachings and their combination). We agree because Alameh teaches that the similarity of a first-gesture and return-gesture can indicate whether the return-gesture was intended and can be determined by comparing a characteristic of the gestures’s motions. Id. Reville teaches that a characteristic of a first-gesture’s motion and return-gesture’s motion is their maintained extension (i.e., of the arm during motion) and can be measured as respective z-values. Id. Alameh and Reville thereby evidence it would have been obvious to determine a return-gesture was intended by determining that the first-gesture and return-gesture maintained similar z-values while in motion. In the case of slide gestures (such as here), because a change in z-value indicates a curvature of a gesture’s motion (i.e., indicates straightening or bending of the elbow during the slide), the above determination of similar z-values constitutes a determination that the gestures’s motions had a similar curvature. Appellant also contends the Alameh-Reville combination requires “one skilled in the art would need to wholly replace” Alameh’s gesture-sensing technology with Reville’s gesture-sensing technology. Appeal Br. 12. Appellant further contends: “[G]iven that the technology in Appeal 2019-002611 Application 15/435,126 7 Alameh is directed to mobile phones . . . , Appellant respectfully submits that the technology of Reville could not be incorporated in the device in Alameh without rendering the device unusable and unfit for its intended purpose.” Id. at 12–13; see also Reply Br. 3–5. We are unpersuaded for each of two reasons. First, Appellant’s statements as to Alameh’s and Reville’s gesture-sensing technologies constitute mere attorney argument that Reville’s technology cannot be added to Alameh’s device. See In re Geisler, 116 F.3d 1465, 1470 (Fed. Cir. 1997) (“An assertion of what seems to follow from common experience is just attorney argument and not the kind of factual evidence that is required to rebut a prima facie case of obviousness.”). Second, the test for obvious is not whether a prior art device can be modified to incorporate the hardware of another prior art device—i.e., whether Alameh’s device can bodily incorporate Reville’s hardware. Mouttet, 686 F.3d at 1332 (“[A] determination of obviousness based on teachings from multiple references does not require an actual, physical substitution of elements.”). It is whether, for an ordinarily skilled artisan, the proposed combination of features (1) “is more than the predictable use of prior art elements according to their established functions” or (2) “its actual application is beyond his or her skill.” KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 417 (2007). The Examiner has, via the Alameh-Reville combination, shown such predictability in determining a return-gesture is intended by determining the first-gesture’s motion and return-gesture’s motion have a similar lack of curvature. See supra 3–4 (explaining the combination). The Examiner has also shown an ability in the art to measure Appeal 2019-002611 Application 15/435,126 8 a gesture in three-dimensions and thereby shown a reasonable expectation of success for the combination. Id.; see also In re O'Farrell, 853 F.2d 894, 903–04 (Fed. Cir. 1988) (“Obviousness does not require absolute predictability of success. . . . For obviousness under § 103, all that is required is a reasonable expectation of success.”). Appellant also contends that “Alameh does not detect consecutive gestures to detect a predetermined input. . . . Alameh discusses a technique . . . where a second linear gesture is compared to a simple threshold to determine if the second gesture should be ignored by the system.” Reply Br. 2–3 (citing Alameh ¶ 154). We will not consider this argument because it could have been—but was not—raised by in Appeal Brief and is therefore waived. See Ex parte Borden, 93 USPQ2d 1473, 1473–74 (BPAI 2010) (informative) (Absent a showing of good cause, the Board does not address Reply Brief arguments that could have been presented in the Appeal Brief.). The Appeal Brief merely asserts (i.e., in only a perfunctory manner) the Alameh-Reville combination does not teach or suggest the claimed “detecting . . . a predetermined user input for the device based on the comparing.” Appeal Br. 9; see also SmithKline Beecham Corp. v. Apotex Corp., 439 F.3d 1312, 1320 (Fed. Cir. 2006) (“[I]ssues adverted to in a perfunctory manner, unaccompanied by some effort at developed argumentation, are deemed waived.”). The Appeal Brief’s developed arguments are directed to the claimed “comparing . . . at least one characteristic comprising a curvature of a trajectory of the first gesture to at least one characteristic of the second gesture” and whether the combination is reasonable. Appeal Br. 9–13. Appeal 2019-002611 Application 15/435,126 9 Claim 16 In response to Appellant’s contentions for claim 16, the Examiner responds: “What does this [argued] claim language require?” Ans. 8. Because the Examiner admits speculating as to the scope of claim 16, we are constrained by the record to hold the Examiner erred. See In re Biedermann, 733 F.3d 329, 336 (Fed. Cir. 2013) (An affirmance cannot raise a “question … [of] whether the Board and the examiner properly relied on the same … factual underpinnings.”); In re Steele, 305 F.2d 859, 862 (CCPA 1962) (“[T]he board [was] wrong in relying on . . . speculative assumptions as to the meaning of the claims and basing a rejection under 35 U.S.C. § 103 thereon.”). Accordingly, we do not sustain the Examiner’s decision to reject claim 16. OVERALL CONCLUSION We affirm the Examiner’s decision to reject claims 14, 15, and 17–33. We reverse the Examiner’s decision to reject claim 16. DECISION SUMMARY Claims Rejected 35 U.S.C. § Basis Affirmed Reversed 14–33 103 Alameh, Reville 14, 15, 17–33 16 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). See 37 C.F.R. § 1.136(a)(1)(iv). AFFIRMED-IN-PART Copy with citationCopy as parenthetical citation