Yehuda BinderDownload PDFPatent Trials and Appeals BoardMar 27, 202015002425 - (D) (P.T.A.B. Mar. 27, 2020) 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. 15/002,425 01/21/2016 Yehuda BINDER BINDER-006-US8 1044 131926 7590 03/27/2020 May Patents Ltd. c/o Dorit Shem-Tov P.O.B 7230 Ramat-Gan, 5217102 ISRAEL EXAMINER BUKOWSKI, KENNETH ART UNIT PAPER NUMBER 2621 MAIL DATE DELIVERY MODE 03/27/2020 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 YEHUDA BINDER Appeal 2018-006174 Application 15/002,425 Technology Center 2600 Before JOSEPH L. DIXON, JASON J. CHUNG, and JULIET MITCHELL DIRBA, Administrative Patent Judges. DIXON, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the Examiner’s decision to finally reject claims 2–53. Final Act. 1. Claim 1 is cancelled. 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(a). Appellant identifies the real party in interest as May Patents Ltd. Appeal Br. 2. Appeal 2018-006174 Application 15/002,425 2 CLAIMED SUBJECT MATTER The claims are directed to the control of a display using face detection and/or gesture recognition. Control of the display includes powering the display on and off, rotating the display between a horizontal orientation and a vertical orientation, and tilting the display. Claim 2, reproduced below, is the only independent claim and illustrative of the claimed subject matter: 2. A device for affecting an illumination of a display in response to face detection, the device comprising: a single enclosure, and in said single enclosure; a display having a screen for visually presenting information; a digital camera for capturing an image in a digital data form; an image processor coupled to said digital camera for receiving the image and for detecting a human face in the image; and a second processor and firmware or software executable by said second processor, said second processor being coupled to said image processor and to said display, wherein said second processor is operative to control the illumination level of said screen in response to the detection of, or the absence of, a face in the image. REFERENCES The prior art relied upon by the Examiner is: Name Reference Date Wilson et al. US 2004/0189720 A1 Sept. 30, 2004 Kato et al. US 2005/0084141 A1 Apr. 21, 2005 Cho et al. US 2006/0067367 A1 Mar. 30, 2006 Appeal 2018-006174 Application 15/002,425 3 Trovato US 2006/0071135 A1 Apr. 6, 2006 Xu et al. US 2007/0126884 A1 June 7, 2007 Binder et al. US 2007/0173202 A1 July 26, 2007 Underkoffler et al. US 7,598,942 B2 Oct. 6, 2009 Kitaura US 2007/0132728 June 14, 2007 REJECTIONS Claims 2–15, 25, and 30–34 stand rejected under 35 U.S.C. § 103 as being unpatentable over Trovato in view of Xu. Claims 16–20 and 22 stand rejected under 35 U.S.C. § 103 as being unpatentable over Trovato in view of Xu in further view of Kato. Claim 21 stands rejected under 35 U.S.C. § 103 as being unpatentable over Trovato in view of Xu in view of Kato further in view of Underkoffler. Claims 23, 26, and 27 stand rejected under 35 U.S.C. § 103 as being unpatentable over Trovato in view of Xu in further view of Wilson. Claim 24 stands rejected under pre-AIA 35 U.S.C. 103 as being unpatentable over Trovato in view of Xu in further view of Kitaura. Claims 28, 29, 35, 45, and 50–52 stand rejected under 35 U.S.C. § 103 as being unpatentable over Trovato in view of Xu in further view of Appellant’s Admitted Prior Art. Claims 36–44 stand rejected under 35 U.S.C. § 103 as being unpatentable over Trovato in view of Xu in view of Appellant’s Admitted Prior Art in further view of Binder. Claims 47–49 stand rejected under 35 U.S.C. § 103 as being unpatentable over Trovato in view of Xu in view of Appellant’s Admitted Prior Art in further view of Cho. Appeal 2018-006174 Application 15/002,425 4 Claims 46 and 53 stand rejected under 35 U.S.C. § 103 as being unpatentable over Trovato in view of Xu in view of Appellant’s Admitted Prior Art in further view of Wilson. OPINION I. Claims 2–15, 25, and 30–34 With respect to claims 2–15, 25, and 30–34, Appellant argues claims 2–6, 10, 12, 14, 15, and 31 as a group, claims 7–9 as a group, claim 11 separately, claim 13 separately, claim 25 separately, claim 30 separately, and claims 32–34 as a group. Accordingly, we select independent claim 2 as representative of the group to which it pertains, claim 7 as representative of the group to which it pertains, and claim 32 as representative of the group to which it pertains. See 37 C.F.R. § 41.37(c)(1)(iv) (2017). a. Claims 2–6, 10, 12, 14, 15, and 31 In a first argument, Appellant argues that modifying Trovato with Xu “changes the principle of operation” of Trovato, Trovato “teaches away” from the combination, and there would be no reason to combine Trovato and Xu. Appeal Br. 4–6. Appellant reasons that Trovato’s principle of operation is based on “mechanical rotation of a motor that is external to the display” while Xu “relates to electrical control (of illumination) internal of the display” and Trovato’s principle of operation would be modified if combined with Xu. Appeal Br. 4. Appellant additionally reasons that Trovato only responds to the determined position of the detected element, and, as result, “teaches away” from having display illumination controlled in response to the detection of the element. Appeal Br. 5, 6. Appellant additionally reasons that Trovato’s focus is to position a display screen for optimal viewing and controlling illumination of a screen degrades viewing Appeal 2018-006174 Application 15/002,425 5 of the screen, and, thus, Trovato “teaches away” from the combination. Appeal Br. 6. Appellant also reasons that one with ordinary skill in the art would not combine Trovato and Xu because they “are each self-contained and independently operate effectively.” Appeal Br. 5. In a second argument, Appellant argues that the rationale for combining Trovato and Xu is improper. Appeal Br. 6. Appellant reasons that there is a substantial difference between Trovato’s display control based on determining a position of a detected element and Xu’s display control based on the detection of the element, the “rationale provides no link to the present application,” and the “rationale is not relevant.” Appeal Br. 6, 7. In response, the Examiner finds that “Appellant provides nothing more than conjecture as to why or how the principle operation of Trovato is changed, by adding the desirable power saving techniques of Xu” and that “[A]ppellant has failed to provide any teaching of Trovato that prevents Xu’s control of the illumination level of the display (a display which notably both references contain).” Ans. 2. Also, the Examiner finds, “[o]ne of ordinary skill in the art would readily recognize that the device of Trovato responds to both the detection and position of the object within the image.” Ans. 2, 3 (emphasis omitted). Further, the Examiner finds that “[c]ontrolling the illumination of the display (e.g., to turn off the display when no user is detected) serves two functions: 1) conservation of power and 2) allows the conservation of power to occur without a physical touching of the display— as stated—and wholly consisted with Trovato.” Ans. 3. The Examiner also finds “nothing in Trovato prevents the display from controlling the illumination level in response to no user being detected” and Trovato’s paragraph 55 “recognizes that there are times that no user is present to Appeal 2018-006174 Application 15/002,425 6 interact with the device, however, falls short of discussing the display’s illumination levels.” Ans. 4 (emphasis omitted). The Examiner has the initial burden to set forth the basis for any rejection so as to put the patent Applicant on notice of the reasons why the Applicant is not entitled to a patent on the claim scope that he seeks — the so-called “prima facie case.” In re Oetiker, 977 F.2d 1443, 1445 (Fed. Cir. 1992). An Appellant may attempt to overcome an Examiner’s rejection on appeal to the Board by submitting arguments and/or evidence to show that the Examiner made an error in either (1) an underlying finding of fact upon which the final conclusion was based, or (2) the reasoning used to reach the legal conclusion. See Ex parte Frye, 94 USPQ2d 1072, 1075 (BPAI 2010) (precedential). The panel then reviews the rejection for error based upon the issues identified by Appellant, and in light of the arguments and evidence produced thereon. See Oetiker, 977 F.2d at 1445; see also Frye, 94 USPQ2d at 1075. Based on our review, the Examiner has set forth a prima facie case of obviousness. Trovato and Xu are both directed to providing control of a display based on a detected face. Final Act. 2. Based on our review of Trovato and Xu, nothing in these references precludes their combination. Further, we agree with the Examiner that combining Trovato with Xu would be desirable because Xu at least adds “power saving techniques” and does so “without physically touching the display.” Final Act. 15; Ans. 2, 3. When the Examiner establishes a prima facie case of obviousness, the burden shifts to Appellant to set rebut that prima facie case, through arguments and/or evidence. See, e.g., In re Dillon, 919 F.2d 688, 692. We are not persuaded by Appellant’s rebuttal arguments, and Appellant has not provided any persuasive rebuttal evidence. Moreover, and notably, Appellant has not filed a Reply Brief rebutting the Examiner’s findings and conclusions in the Appeal 2018-006174 Application 15/002,425 7 Examiner’s Answer, and we affirm the Examiner’s rejections of claims 2– 15, 25, 30, and 32–34. Appellant does not separately argue dependent claim 31. Accordingly, this claim falls with representative independent claim 2, from which it depends. b. Claims 7–9 Appellant again argues Trovato “teaches away” from the combination because Trovato’s focus is to position a display screen for optimal viewing and by controlling illumination of a screen, as Xu teaches, Trovato’s optimal viewing would be degraded. Id. at 7, 8. In response, the Examiner again references Trovato’s paragraph 55. Based on our review, the Examiner has set forth a prima facie case of obviousness. We are not persuaded by Appellant’s rebuttal arguments, and Appellant has not provided any persuasive rebuttal evidence. Moreover, and notably, Appellant has not filed a Reply Brief rebutting the Examiner’s findings and conclusions in the Examiner’s Answer. Therefore, we affirm the Examiner’s rejections of claims 7–9. c. Claims 11 and 13 For claim 11, Appellant argues that Xu’s paragraph 48 “is silent regarding any time measuring of time [sic] relating to detecting of a face, and in particular regarding any action in response to such timed detection.” Appeal Br. 8. Similarly, for claim 13, Appellant argues that “reaction” recited in Xu’s paragraph 48 is unspecified and, thus, Xu’s paragraph 48 “is silent . . . regarding any timing of such detection.” Appeal Br. 8, 9. In response, the Examiner finds, for claim 11, that the “first time period” of claim 11 corresponds to “the time period” in which the face has Appeal 2018-006174 Application 15/002,425 8 left the image and returns, thus preventing the device form entering the power savings mode and “preventing the illumination lower and/or power off” and, for claim 13, that the “second time period” of claim 13 corresponds to a time period, after the first time period, in which a face leaves the image and returns as in the first time period. Final Act. 16; see also Ans. 5. Also, the Examiner finds, for both claims 11 and 13, that the “decision making 120 module 120 of Xu makes determinations based on the face detection and recognition, or absence thereof” and “when an object (face) is detected to be absent from the image, the power savings mode begins to reduce the brightness (illumination) and eventually power off the display.” Ans. 5. Based on our review, the Examiner has set forth a prima facie case of obviousness. We are not persuaded by Appellant’s rebuttal arguments, and Appellant has not provided any persuasive rebuttal evidence. Moreover, and notably, Appellant has not filed a Reply Brief rebutting the Examiner’s findings and conclusions in the Examiner’s Answer. Therefore, Appellant has not shown error in the Examiner’s factual findings or conclusion of obviousness, and we affirm the Examiner’s rejections of claims 11 and 13. d. Claim 25 Appellant argues that “the Action fails to explain any motivation or rationale” for modifying Trovato’s display, which is “used for displaying locally captured and transmitted images,” with Xu’s display, which receives television channels from “external and remote television stations.” Appeal Br. 8. Appellant further argues that the Examiner’s rationale, which relates to power conservation, “is not relevant.” Appeal Br. 8. In response, the Examiner finds that nothing in Trovato precludes Trovato from receiving and displaying television channels and nothing in Xu precludes Xu from displaying locally transmitted and captured images. Ans. Appeal 2018-006174 Application 15/002,425 9 6. Also, the Examiner finds that the conservation of power features of Xu are “clear functional advantages Xu provides” for displays, including televisions. Ans. 6. Based on our review, the Examiner has set forth a prima facie case of obviousness. We agree with the Examiner that Trovato and Xu are both directed providing control of a display and both are capable of receiving information to be displayed through a “channel.” Ans. 6. Based on our review of Trovato and Xu, nothing in these references precludes their combination, as discussed above. We are not persuaded by Appellant’s rebuttal arguments, and Appellant has not provided any persuasive rebuttal evidence. Moreover, and notably, Appellant has not filed a Reply Brief rebutting the Examiner’s findings and conclusions in the Examiner’s Answer. Therefore, Appellant has not shown error in the Examiner’s factual findings or conclusion of obviousness, and we affirm the Examiner’s rejection of claim 25. e. Claim 30 Appellant argues Xu “is silent about any location of any detected object in general, and location of a human face in the image.” Appeal Br. 10. In response, the Examiner finds that Xu’s face detection, as described in Xu’s paragraph 48, indeed relies on facial position. Ans. 6. We agree with the Examiner. Xu determines when a viewer is “in front of the TV 102 for a certain amount of time.” Xu, paragraph 48. Thus, Xu locates a face in the image. Therefore, Appellant has not shown error in the Examiner’s factual findings or conclusion of obviousness, and we affirm the Examiner’s rejection of Claim 30. Appeal 2018-006174 Application 15/002,425 10 f. Claims 32–34 Appellant initially argues, “the Xu reference is silent regarding any network medium, or any transceiver.” Appeal Br. 10. Appellant additionally argues, “[t]he Action fails to explain any motivation or rationale for modifying the display in the Trovato reference to include communication related functionalities” and “[t]he rationale provided for combining with the Xu reference . . . is not relevant for combining any communication related functionality to the Trovato reference.” Appeal Br. 10. In response, the Examiner finds that controller module 108 serves as a network medium because it facilitates communication between the decision making module 120, which serves as the claimed second processor and transceiver, and camera 110. Final Act. 17; Ans. 6. Also, the Examiner finds, “One of ordinary skill in the art would recognize the need for the video stream of the camera to be sent over some type of ‘network medium.’” Ans. 6. Thus, the Examiner concludes one with ordinary skill in the art would have been motivated to combine Trovato with Xu because of Xu’s power conservation features. Ans. 7. Based on our review, the Examiner has set forth a prima facie case of obviousness. Further, Appellant has not identified any element in Claim 32 that precludes the Examiner’s findings. Moreover, we do not find the Examiner’s interpretation unsupported or unreasonable. Thus, as noted above, the burden shifts to Appellant to rebut that prima facie case. However, we are not persuaded by Appellant’s rebuttal arguments, and Appellant has not provided any persuasive rebuttal evidence. Moreover, and notably, Appellant has not filed a Reply Brief rebutting the Examiner’s findings and conclusions in the Examiner’s Answer. Therefore, Appellant Appeal 2018-006174 Application 15/002,425 11 has not shown error in the Examiner’s factual findings or conclusion of obviousness, and we affirm the Examiner’s rejections of claim 32–34. II. Claims 16–20 and 22 With respect to claims 16–20 and 22, Appellant argues claims 16–20 and 22 as a group. Accordingly, we select claim 16 as representative of the group. See 37 C.F.R. § 41.37(c)(1)(iv). For representative claim 16, Appellant argues that Kato is not combinable with Trovato because Kato does not control a device (i.e., Kato is not analogous to Trovato). Appeal Br. 11, 12. Appellant further argues that Trovato teaches away from the combination because, in Trovato, both of the operator’s hands are in use by the operator while the display is operating (i.e., the operator’s hands cannot be used to perform a hand gesture because they are occupied). Appeal Br. 12, 13. Moreover, Appellant argues that Kato teaches that detection accuracy is increased “as a result of using an object attribute, and not due to any detection of an additional element.” Appeal Br. 13. In response, the Examiner finds that Kato is directed towards improving object detection accuracy and that Kato does so by detecting “certain objects” (e.g., hands) and “multiple objects” (e.g., hands and face). Ans. 7, 8. The Examiner further finds that Kato is combinable with Trovato and Xu because Trovato and Xu already both teach controlling a display based on object detection, and Trovato additionally teaches that the device may be controlled based on “movement of the user’s hands.” Ans. 7. The Examiner further finds that Kato relies on multiple objects to improve detection accuracy, and further that Kato, because of the way object detection is performed in Kato, would improve the object detection accuracy in Trovato and Xu. Ans. 7, 8. The Examiner finds, “Nothing in Trovato Appeal 2018-006174 Application 15/002,425 12 prevents the use of additional detection capabilities (as in Xu and Kato) to improve upon the device.” Ans. 8. Thus, the Examiner finds that adding Kato to Trovato and Xu has clear advantages. Id. Based on our review, the Examiner has set forth a prima facie case of obviousness. We agree with the Examiner in that Trovato and Xu are both directed providing control of a display based on a detected face and Trovato also provides detecting hands. Kato is also directed towards object detection, but Kato further teaches how multiple objects, including hands and faces can be detected accurately. Based on our review of Trovato, Xu, and Kato, nothing in these references precludes their combination. Further, we agree with the Examiner that combining Trovato with Xu would be desirable because Xu at least adds “power saving techniques” and does so “without physically touching the display” and that additionally combining Kato would be desirable to improve detection accuracy. Final Act. 15, 18; Ans. 2, 3, 7, 8. We are not persuaded by Appellant’s rebuttal arguments and Appellant has not provided any persuasive rebuttal evidence. Moreover, and notably, Appellant has not filed a Reply Brief rebutting the Examiner’s findings and contentions in the Examiner’s Answer, and we affirm the Examiner’s rejections of claims 16–20 and 22. III. Claim 21 Appellant argues, “the Underkoffler reference is silent regarding any remote control in general, and thus . . . is not relevant to any combination.” Appeal Br. 14. Appellant additionally argues that Underkoffler and Trovato both involve “remote applications,” but are in “remote fields” and, as a result, are “not analogous” and that one skilled in the art would not have a reason to combine these references. Appeal Br. at 15. Appellant reasons that, inter alia, Underkoffler includes multiple cameras and is directed Appeal 2018-006174 Application 15/002,425 13 towards controlling a computer system and that Trovato has no need for increasing inputs and inputs as particular as “finger related gestures.” Appeal Br. 15, 16. Appellant also argues that Trovato and Underkoffler are not analogous because they are classified differently. Appeal Br. 15, 16. In response, the Examiner finds that “Underkoffler also uses object recognition within images to exact control over a display system.” Ans. 8. The Examiner finds that that Trovato and Underkoffler are combinable because they each allow “convenient or better control or visualization of a device.” Ans. 8. The Examiner also contends that regardless of the type of display, Trovato and Underkoffler each show a display “being controlled with image detection technology” and, as a result, “are analogous.” Ans. 8, 9. The Examiner maintains that Underkoffler adds a benefit of increased user control over the display and increased versatility of the device. Ans. 9; Final Act. 19. Regarding classification, the Examiner finds that, citing In re Ellis2, “the Trovato and Underkoffler references share multiple similarities of structure and function to applicant’s invention.” Ans. 9. Based on our review, the Examiner has set forth a prima facie case of obviousness. We agree with the Examiner in that Trovato, Xu, and Underkoffler are each directed towards providing control of a display based on object detection. We also agree with the Examiner in that Underkoffler provides an advantage of additional control over the display and increased versatility of the display device. Trovato indicates, in paragraphs 2–7, that prior art display control systems are limited and are inconvenient to the user. Thus, based on our review, one with ordinary skill in the art would indeed would have been motivated to combine Underkoffler’s features with Trovato 2 In re Ellis, 476 F.2d. 1370, 1372 (CCPA 1973). Appeal 2018-006174 Application 15/002,425 14 and Xu. Further, based on our review of Trovato, Xu, and Underkoffler, nothing in these references precludes their combination. We also agree with the Examiner that the similarities in structure and function between Trovato, Underkoffler, and Appellant’s invention show these reference are analogous. We are not persuaded by Appellant’s rebuttal arguments and Appellant has not provided any persuasive rebuttal evidence. Moreover, and notably, Appellant has not filed a Reply Brief rebutting the Examiner’s findings and contentions in the Examiner’s Answer, and we affirm the Examiner’s rejection of claim 21. IV. Claims 23, 26, and 27 With respect to claims 23, 26, and 27, Appellant argues claims 23, 26, and 27 as a group. Accordingly, we select claim 23 as representative of the group. See 37 C.F.R. § 41.37(c)(1)(iv). Appellant argues that the device of Trovato teaches away from being hand-held because it is “stationary” and moved only by a “motor.” Appeal Br. 16, 17. Appellant additionally argues that changing Trovato’s stationary and motor-controlled device into a hand-held device would change Trovato’s “principle of operation” because with hand-held devices “the user is holding the device.” Appeal Br. 17. Appellant additionally argues that Trovato already provides controlling a display according to user detection and that there would be no motivation to combine Wilson with Trovato. Appeal Br. 18. In response, the Examiner finds, “nothing in Trovato’s disclosure states the device cannot be rotated by the user, nor that the device cannot be moved or carried (e.g., ‘hand held’), nor that it is desirable to prevent mobility to the system.” Ans. 10. The Examiner also contends that claim 23 Appeal 2018-006174 Application 15/002,425 15 allows for a device that can be hand-held instead of requiring for “the device to be held.” Ans. 10. Based on our review, the Examiner has set forth a prima facie case of obviousness. We agree with the Examiner in that nothing in claim 23 requires a user to be holding the device. Instead, claim 23 requires “said device is hand-held.” Further, it is true that “[n]othing in Trovato’s disclosure states that device cannot be rotated by the user, nor that the device cannot be moved, carried or held by the pole to which it is attached . . . nor that it is desirable to prevent mobility to the system from one place of operation to another.” Ans. 10. We are not persuaded by Appellant’s rebuttal arguments, and Appellant has not provided any persuasive rebuttal evidence. Moreover, and notably, Appellant has not filed a Reply Brief rebutting the Examiner’s findings and conclusions in the Examiner’s Answer, and we affirm the Examiner’s rejections of claims 23, 26, and 27. V. Claim 24 Appellant does not separately argue dependent claim 24. Accordingly, this claim falls with independent claim 2, from which it depends. VI. Claims 28, 29, 35, 45, and 50–52 With respect to claims 28, 29, 35, 45, and 50–52, Appellant argues claim 35 separately, claim 45 separately, and claims 50–52 as a group. We Appeal 2018-006174 Application 15/002,425 16 select claim 50 as representative of the group to which it pertains. See 37 C.F.R. § 41.37(c)(1)(iv). Appellant does not separately argue dependent claims 28 and 29. Accordingly, these claims fall with representative independent claim 2, from which they depend (directly or indirectly). a. Claim 35 Appellant argues that because an Office Action in a co-pending application, “having the same specification as the present application,” required a restriction between an embodiment including wired communication and an embodiment including wireless communication, the Office admits that wireless communication is patentably distinct from wired communication. Appeal Br. 18, 19. Appellant additionally argues that since Trovato and Xu avoid using a remote control to control their respective displays, that both references teach away from “any remote communication in general.” Appeal Br. 19. Appellant further argues that the proposed substitution is improper because it substitutes one element for a similar element with additional features and that modifying the Trovato reference with the similar element requires “major modifications.” Appeal Br. 19. Appellant also argues that the proposed modification is just a combination of known elements and that such a combination “is an exercise in impermissible hindsight.” Appeal Br. 20. Appellant further argues that “Trovato does not even disclose any receipt of information from any external source.” Appeal Br. 20. Moreover, Appellant argues that since Trovato and Xu are directed towards “stationary, non-mobile and non- Appeal 2018-006174 Application 15/002,425 17 portable” devices, one with ordinary skill would not be inclined to “embed a wireless interface.” Appeal Br. 21 (emphasis omitted). In response, the Examiner finds that the co-pending application cited by Appellant is unrelated to the instant application and does not “bear [sic] any weight here.” Ans. 11. The Examiner also finds “Appellant cites no support for the argument that the restriction requirement creates a legal presumption of patentability as against the prior art” in a separate prosecution. Ans. 11. The Examiner additionally finds that in order for Trovato and Xu to “operate as a detection system, there must be communication between each component” and, as result, “the processor which controls the display . . . requires a receiver or transceiver to accomplish this task [and such] information is sent over a network medium.” Ans. 11, 12. Moreover, the Examiner finds that nothing in either Trovato or Xu requires for those respective devices to be stationary, non-mobile, non- portable and prevents data “from being transferred wirelessly.” Ans. 12. Based on our review, the Examiner has set forth a prima facie case of obviousness. Thus, as noted above, the burden shifts to Appellant to rebut that prima facie case. However, we are not persuaded by Appellant’s rebuttal arguments and Appellant has not provided any persuasive rebuttal evidence. Moreover, and notably, Appellant has not filed a Reply Brief rebutting the Examiner’s findings and conclusions in the Examiner’s Answer, and we affirm the Examiner’s rejections of claim 35. b. Claim 45 Appellant argues that because an Office Action in a co-pending application, “having the same specification as the present application,” required a restriction between an embodiment including wired communication and an embodiment including wireless communication, the Appeal 2018-006174 Application 15/002,425 18 Office admits that wired communication is patentably distinct from other communication. Appeal Br. 21, 22. Appellant additionally argues that since Trovato and Xu avoid using a remote control to control their respective displays, that both reference teach away from “any remote communication in general.” Appeal Br. 22. Appellant further argues that the proposed substitution is improper because it substitutes one element for a similar element with additional features and that modifying the Trovato reference with the similar element requires “major modifications.” Appeal Br. 22. Appellant also argues that the proposed modification is just a combination of known elements and that such a combination “is an exercise in impermissible hindsight.” Appeal Br. 23. Appellant further argues that “Trovato does not even disclose any receipt of information from any external source.” Appeal Br. 23. Moreover, Appellant argues that since Trovato and Xu are directed towards “stationary, non-mobile and non- portable” devices, one with ordinary skill would not be inclined to “embed a wired interface.” Appeal Br. 24 (emphasis omitted). In response, the Examiner finds that the co-pending application cited by Appellant is unrelated to the instant application and does not “bear [sic] any weight here.” Ans. 13. The Examiner also finds “Appellant cites no support for the argument that the restriction requirement creates a legal presumption of patentability as against the prior art.” Ans. 13. The Examiner additionally finds that in order for Trovato and Xu to “operate as a detection system, there must be communication between each component” and, as result, “the processor which controls the display . . . requires a receiver or transceiver to accomplish this task [and such] information is sent over a network medium.” Ans. 13, 14. Moreover, the Examiner finds that nothing in either Trovato or Xu require for those respective devices to be Appeal 2018-006174 Application 15/002,425 19 stationary, non-mobile, non-portable and prevents data “from being transferred wirelessly.” Ans. 14. Based on our review, the Examiner has set forth a prima facie case of obviousness. Thus, as noted above, the burden shifts to Appellant to rebut that prima facie case. However, we are not persuaded by Appellant’s rebuttal arguments, and Appellant has not provided any persuasive rebuttal evidence. Moreover, and notably, Appellant has not filed a Reply Brief rebutting the Examiner’s findings and conclusions in the Examiner’s Answer, and we affirm the Examiner’s rejection of claim 45. c. Claims 50–52 Appellant argues “[t]he Action provides no rationale or explanation regarding combining with AAPA.” Appeal Br. 24. Appellant further argues, that paragraph 116 of the present application, which was relied upon by the Examiner show AAPA, is “silent about any carrying power and data in the same cable.” Appeal Br. 24, 25. Appellant further argues that Figure 7 of the present application, which corresponds to paragraph 116, shows a connector for power that is different from a connector for data. Appeal Br. 25. Appellant additionally argues that AAPA does not disclose a camera connected to a cable carrying both power and data. Appeal Br. 25. In response, the Examiner maintains that cable 26 of Figure 7 [sic 8] of the present application is a well-known cable that carries both power and data to and from the camera.3 Ans. 14. 3 Additionally, we note that the use of USB (Universal Serial Bus) communication for data and power was well known since the 2000’s. See Universal Serial Bus Specification, Revision 2.0, April 27, 2000, Section 4.3.1. Appeal 2018-006174 Application 15/002,425 20 We agree with the Examiner and, therefore, affirm the Examiner’s rejections of claims 50–52. VII. Claims 36–44 With respect to claims 36–44, Appellant argues claims 36–38, 39, 41, and 43 as a group, claim 40 separately, claim 42 separately, and claim 44 separately. Accordingly, we select claim 36 as representative of the group to which it pertains. See 37 C.F.R. § 41.37(c)(1)(iv). a. Claims 36–38, 39, 41, and 43 Appellant first argues that the Binder reference is not analogous to any of the other prior art references relied upon by the Examiner, namely Trovato and Xu. Appeal Br. 25, 26. Appellant subsequently argues that the rationale provided by the Examiner for combining Binder with Trovato, Xu, and AAPA is insufficient because “the rationale provides no link to the present application” and “the rationale amounts to nothing more than an unsupported and unexplained conclusory statement.” Appeal Br. 26, 27. In response, the Examiner finds that Appellant has not recognized that the rejection was based on Trovato, Xu, AAPA, and Binder and that Trovato, Xu, and AAPA are all directed towards object detection devices that include a camera and provides communication between the camera and other components of the device. Ans. 15. In this regard, the Examiner further finds that Binder is analogous to the existing combination because Binder is also related to communication, but specifies certain types of communication. Ans. 15. As a result, the Examiner finds the combination is proper. Ans. 15. Moreover, the Examiner finds that Binder increases the versatility of the device taught by the combination “by reducing the need for wired components, which can free up the required space and size of the device.” Ans. 15. Appeal 2018-006174 Application 15/002,425 21 Based on our review, the Examiner has set forth a prima facie case of obviousness. Thus, as noted above, the burden shifts to Appellant to rebut that prima facie case. However, we are not persuaded by Appellant’s rebuttal arguments, and Appellant has not provided any persuasive rebuttal evidence. Moreover, and notably, Appellant has not filed a Reply Brief rebutting the Examiner’s findings and conclusions in the Examiner’s Answer, and we affirm the Examiner’s rejections of claims 36–38, 39, 41, and 43. b. Claim 40 Appellant argues that the rationale provided by the Examiner for combining Binder with Trovato, Xu, and AAPA is insufficient because “the rationale amounts to nothing more than an unsupported and unexplained conclusory statement” and “the rationale provides no link to these claims.” Appeal Br. 27, 28. In response, the Examiner finds that Binder increases the versatility of the device taught by the combination “by reducing the need for wired components, which can free up the required space and size of the device.” Ans. 16. Based on our review, the Examiner has set forth a prima facie case of obviousness. Thus, as noted above, the burden shifts to Appellant to rebut that prima facie case. However, we are not persuaded by Appellant’s rebuttal arguments, and Appellant has not provided any persuasive rebuttal evidence. Moreover, and notably, Appellant has not filed a Reply Brief rebutting the Examiner’s findings and conclusions in the Examiner’s Answer, and we affirm the Examiner’s rejection of claim 40. Appeal 2018-006174 Application 15/002,425 22 c. Claims 42 and 44 For these claims, Appellant argues that the rationale provided by the Examiner for combining Binder with Trovato, Xu, and AAPA is insufficient because “the rationale amounts to nothing more than an unsupported and unexplained conclusory statement” and “the rationale provides no link to these claims.” Appeal Br. 28–30. Appellant additionally argues that the Office Action has admitted the non-obviousness of using IEEE standards. Appeal Br. 29, 30 In response, the Examiner finds that Binder increases the versatility of the device taught by the combination “by reducing the need for wired components, which can free up the required space and size of the device.” Ans. 16. The Examiner also clarifies that the IEEE standards Appellants are referring to were “not applied to Binder, but another reference Cho.” Ans. 16. Based on our review, the Examiner has set forth a prima facie case of obviousness. Thus, as noted above, the burden shifts to Appellant to rebut that prima facie case. However, we are not persuaded by Appellant’s rebuttal arguments, and Appellant has not provided any rebuttal evidence. Moreover, and notably, Appellant has not filed a Reply Brief rebutting the Examiner’s findings and conclusions in the Examiner’s Answer, and we affirm the Examiner’s rejections of claims 42 and 44. VIII. Claims 47–49 With respect to Claims 47–49, Appellant argues claims 47–49 as a group. Accordingly, we select claim 47 as representative of the group to which it pertains. See 37 C.F.R. § 41.37(c)(1)(iv). Appellant first argues that the Cho reference is not analogous to any of the other prior art references relied upon by the Examiner, namely Appeal 2018-006174 Application 15/002,425 23 Trovato and Xu. Appeal Br. 31. Appellant also argues that Cho was applied in isolation and is not combinable with Trovato and Xu because they are “each self-contained and independently operate.” Appeal Br. 31. Appellant further argues that “[a]dding a LAN interface clearly changes the Trovato system principle of operation, function and structure.” Appeal Br. 32. Appellant also argues that there is motivation to modify Trovato because “Trovato is silent about any communication signals in general.” Appeal Br. 32. Moreover, Appellant argues that Trovato and Cho are not combinable because they are classified differently. Appeal Br. 32. Appellant subsequently argues that the rationale provided by the Examiner is not a rationale at all because Trovato does not require “operability” with other devices, is not based on facts gleaned from the prior art references relied upon, and provides no link to the present application. Appeal Br. 33, 34. In response, the Examiner finds that Trovato, Xu, and AAPA are all directed towards object detection devices that include a camera and provide communication between the camera and other components of the device. Ans. 16, 17. The Examiner further finds that Cho is analogous to the existing combination because Cho is also related to communication, but specifies certain types of communication. Ans. 17. The Examiner finds that Appellant has argued non-obviousness by pointing to features not present within Cho. Ans. 17. The Examiner further finds that Trovato and Xu do not provide the claimed communication mediums and that AAPA and Cho provide these mediums. Ans. 17. The Examiner maintains that one of skill in the art would not find that the principle operation of the devices of Trovato and Xu would be changed by the addition of AAPA and/or Cho. Ans. 17. Regarding classification, the Examiner finds, again citing In re Appeal 2018-006174 Application 15/002,425 24 Ellis4, that “the Trovato and Cho references share multiple similarities of structure and function to applicant’s invention.” Ans. 18. Based on our review, the Examiner has set forth a prima facie case of obviousness. Thus, as noted above, the burden shifts to Appellant to rebut that prima facie case. However, we are not persuaded by Appellant’s rebuttal arguments, and Appellant has not provided any persuasive rebuttal evidence. Moreover, and notably, Appellant has not filed a Reply Brief rebutting the Examiner’s findings and conclusions in the Examiner’s Answer, and we affirm the Examiner’s rejections of claims 47–49. IX. Claims 46 and 53 a. Claim 46 Appellant argues that Wilson is non-analogous and teaches away from the combination of Trovato and Xu because it is inconvenient to use a USB cable. Appeal Br. 34, 35. Appellant additionally argues that it would require “major modifications” to modify Trovato with Wilson and such modifications would not be a simple substitution. Appeal Br. 35. Instead, Appellant further argues the substitution would not “be considered trivial.” Appeal Br. 36. In response, the Examiner finds that Trovato and Wilson are analogous because both Trovato and Wilson use object detection to control a display. Ans. 19. The Examiner additionally finds that Wilson teaches that cameras are connected to the device through USB and that control can be conveniently exerted over the display through the use of the cameras. Ans. 19. The Examiner maintains that “substituting the USB network 4 In re Ellis, 476 F.2d. at 1372. Appeal 2018-006174 Application 15/002,425 25 connections for that of the wired connection of AAPA would be readily apparent and routine for one of ordinary skill in the art.”5 Ans. 20. Based on our review, the Examiner has set forth a prima facie case of obviousness. Thus, as noted above, the burden shifts to Appellant to rebut that prima facie case. However, we are not persuaded by Appellant’s rebuttal arguments, and Appellant has not provided any persuasive rebuttal evidence. Moreover, and notably, Appellant has not filed a Reply Brief rebutting the Examiner’s findings and conclusions in the Examiner’s Answer, and we affirm the Examiner’s rejection of claim 46. b. Claim 53 Appellant argues that Wilson is non-analogous and teaches away from the combination because Trovato and Xu because it is inconvenient. Appeal Br. 36. Appellant additionally argues that Wilson is silent regarding carrying power in addition data over the USB cable. Appeal. Br. 37. In response, the Examiner maintains that Trovato and Wilson are analogous because both Trovato and Wilson use object detection to control a display. Ans. 20. The Examiner additionally maintains that Wilson teaches that cameras are connected to the device through USB and that control can be conveniently exerted over the display through the use of the cameras. Ans. 20. Additionally, the Examiner finds that the USB 2.0 standard, which was in effect at the time of Wilson, provides “dedicated wires for power and data to transmit simultaneously.” Ans. 20. Based on our review, the Examiner has set forth a prima facie case of obviousness. We agree with the Examiner that the USB 2.0 standard 5 We further note that the AAPA suggest “cable 26 (which may contain a wired or non-wired medium).” (Spec. 16: 30 (emphasis added).) Appeal 2018-006174 Application 15/002,425 26 provides both power and data can be carried over the same cable. See Universal Serial Bus Specification, Revision 2.0, April 27, 2000, Section 4.3.1. We are not persuaded by Appellant’s rebuttal arguments, and Appellant has not provided any persuasive rebuttal evidence. Moreover, and notably, Appellant has not filed a Reply Brief rebutting the Examiner’s findings and conclusions in the Examiner’s Answer, and we affirm the Examiner’s rejection of claim 53. DECISION SUMMARY Claims Rejected 35 U.S.C. § Basis Affirmed Reversed 2–15, 25, 30–34 103 Trovato, Xu 2–15, 25, 30–34 16–20, 22 103 Trovato, Xu, Kato 16–20, 22 21 103 Trovato, Xu, Underkoffler 21 23, 26, 27 103 Trovato, Xu, Wilson 23, 26, 27 24 103 Trovato, Xu, Kitaura 24 28, 29, 35, 45, 50– 52 103 Trovato, Xu, Applicant’s Admitted Prior Art 28, 29, 35, 45, 50–52 36–44 103 Trovato, Xu, Applicant’s Admitted Prior Art, Binder 36–44 47–49 103 Trovato, Xu, Applicant’s Admitted Prior Art, Cho 47–49 46, 53 103 Trovato, Xu, Applicant’s 46, 53 Appeal 2018-006174 Application 15/002,425 27 Claims Rejected 35 U.S.C. § Basis Affirmed Reversed Admitted Prior Art, Wilson Overall Outcome 2–53 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 Copy with citationCopy as parenthetical citation