Ex Parte Aubauer et al

Patent Trial and Appeal Board

May 25, 2017

13140837 (P.T.A.B. May. 25, 2017)

United States Patent and Trademark Office
UNITED STATES DEPARTMENT OF COMMERCE
United States Patent and Trademark Office
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Alexandria, Virginia 22313-1450
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APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
13/140,837 07/12/2011 Roland Aubauer 68354.225101 1321
86528 7590 05/30/2017
Slay den Grubert Beard PLLC
401 Congress Avenue
Suite 1900
Austin, TX 78701
EXAMINER
DICKE, CHAD M
ART UNIT PAPER NUMBER
2693
NOTIFICATION DATE DELIVERY MODE
05/30/2017 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):
trosson @ sgbfirm.com
patent @ sgbfirm. com
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PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte ROLAND AUBAUER, ARTEM IVANOV,
THOMAS KANDZIORA, and MANFRED SCHACHT
Appeal 2016-004969
Application 13/140,837
Technology Center 2600
Before JOHN A. JEFFERY, TERRENCE W. McMILLIN, and
ALEX S. YAP, Administrative Patent Judges.
JEFFERY, Administrative Patent Judge.
DECISION ON APPEAL
Appellants appeal under 35 U.S.C. § 134(a) from the Examiner’s
decision to reject claims 1—6, 8—14, 17—23, and 25—35. We have jurisdiction
under 35 U.S.C. § 6(b). We affirm.
STATEMENT OF THE CASE
Appellants’ invention involves the contactless detection and
recognition of gestures in a three-dimensional movement space. In one
aspect, the start of a gesture is determined when a measured variable exceeds
a predefined threshold. See generally Spec. 15—16. Claim 1 is illustrative:
1. A method for the contactless detection and recognition of
gestures in a three-dimensional movement space, the method comprising the
steps of:
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Application 13/140,837
generating an electrical near-field, which defines the three-
dimensional movement space;
moving an object in the three-dimensional movement space in a
contactless fashion,
detecting deformations of the electrical near-field caused by the
movements of the object in the three-dimensional movement space by a
plurality of sensors providing a plurality of sensor signals,
generating from the detected deformations of the electrical near-field
at least one movement path corresponding to the movement of the object in
the three-dimensional movement space,
during the generation of the movement path in the movement path
determining a gesture start, wherein beginning with the gesture start the
gesture is extracted from the movement path, wherein a gesture start is
detected when one or more measured variables exceed respective
predefined thresholds, wherein the variables are selectable from a distance of
the object to the surface, the speed of the movement path, and the
acceleration during the movement of the object.
THE REJECTIONS
The Examiner rejected claims 1—6, 11, 19, 20, 22, and 31 under 35
U.S.C. § 103(a) as unpatentable over Lemort (US 2010/0020025 Al; Jan.
28, 2010), Van Berkel (US 2008/0266271 Al; Oct. 30, 2008), and Petit (US
2009/0231295 Al; Sept. 17, 2009). Final Act. 2-13.1
The Examiner rejected claims 8—10, 12—14, 27, 30, and 32 under 35
U.S.C. § 103(a) as unpatentable over Lemort, Van Berkel, Petit, and Bowens
(US 2009/0273571 Al; Nov. 5, 2009). Final Act. 13-21.
1 Throughout this opinion, we refer to (1) the Final Rejection mailed May
20, 2015 (“Final Act.”); (2) the Appeal Brief filed October 19, 2015 (“App
Br.”); (3) the Examiner’s Answer mailed February 10, 2016 (“Ans.”); and
(4) the Reply Brief filed April 11, 2016 (“Reply Br.”).
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Application 13/140,837
The Examiner rejected claims 17, 18, and 21 under 35 U.S.C. § 103(a)
as unpatentable over Lemort, Van Berkel, Petit, and Matsuura (US
2004/0196266 Al; Oct. 7, 2004). Final Act. 21-24.
The Examiner rejected claims 23, 25, 28, and 33 under 35 U.S.C.
§ 103(a) as unpatentable over Van Berkel, Lemort, Bowens, Matsuura, and
Petit. Final Act. 25—41.
The Examiner rejected claim 26 under 35 U.S.C. § 103(a) as
unpatentable over Van Berkel, Lemort, Bowens, Matsuura, Petit, and Krah
(US 2008/0158180 Al; July 3, 2008). Final Act. 41^12.
The Examiner rejected claim 29 under 35 U.S.C. § 103(a) as
unpatentable over Lemort, Van Berkel, Petit, and Gillespie (US
2006/0187214 Al; Aug. 24, 2006). Final Act. 42^13.
The Examiner rejected claim 34 under 35 U.S.C. § 103(a) as
unpatentable over Van Berkel, Lemort, and Petit. Final Act. 43 47.
The Examiner rejected claim 35 under 35 U.S.C. § 103(a) as
unpatentable over Van Berkel, Lemort, Bowens, Matsuura, Petit, and
Gillespie. Final Act. 47-48.
THE REJECTION OVER LEMORT, VAN BERKEL, AND PETIT
The Examiner finds that Van Berkel discloses a contactless gesture
detection and recognizing method in a three-dimensional movement space
that (1) detects deformations of an electrical near-field caused by object
movements in that space, and (2) generates at least one movement path from
the detected deformations corresponding to the object’s movement. Final
Act. 2—5. The Examiner also finds that Lemort determines a gesture start,
where beginning from the gesture start, a gesture is extracted from a
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Application 13/140,837
movement path. Final Act. 3. Although the Examiner acknowledges that
Lemort does not detect a gesture start when one or more measured variables
exceeds respective predefined thresholds, where the variables are selected
from movement path speed and acceleration during object movement, the
Examiner cites Petit for teaching this feature in concluding that the claim
would have been obvious. Final Act. 5—7.
Appellants argue that the touch-based systems of Lemort and Petit do
not teach or suggest determining a gesture start in a contactless detection
system as claimed. App. Br. 8—12. According to Appellants, detecting a
gesture start is of no concern in a touch-based system because the initial
touch marks the start of a gesture. /J.; Reply Br. 4—6. Because determining
a gesture start is said to be “trivial” in the relied-upon touch-based systems,
Appellants contend that these systems determine the gesture itself—not its
start. Id. As such, Appellants contend, skilled artisans would not consider
using the cited contact-based functionality for a contactless detection system
as claimed. Id. Appellants add that because Van Berkel distinguishes
between a three-dimensional detection system and a touchpad, Lemort’s and
Petit’s teachings apply only to Van Berkel’s touchpad—not its three-
dimensional detection system. Reply Br. 6.
ISSUE
Under § 103, has the Examiner erred in rejecting claim 1 by finding
that Lemort, Van Berkel, and Petit collectively would have taught or
suggested a method for contactless detection and recognition of gestures in a
three-dimensional movement space that determines a gesture start in a
movement path?
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ANALYSIS
We begin by noting that it is undisputed that Van Berkel teaches a
contactless gesture detection and recognizing method in a three-dimensional
movement space, but lacks the recited gesture start determination. See Final
Act. 2—5; Reply Br. 5 (citing Van Berkel 133). Nor is it disputed that
Lemort determines a gesture start in a touch-based system. See App. Br. 9
(acknowledging that the start of a gesture is determined by detecting a touch
in Lemort’s paragraphs 9 and 56). The question, then, is whether it would
have been obvious to determine a gesture start in a contactless gesture
detection and recognition system, such as that in Van Berkel, where the
gesture start is detected when one or more of the recited measured variables
exceed a predefined threshold as the Examiner proposes.
On this record, we see no error in the Examiner’s findings and
conclusions in this regard. As the Examiner explains, a gesture is a
movement of a part of the body to express a meaning or idea, and inherently
has a start and end point. Ans. 2—3. Notably, Lemort’s paragraph 9
expressly states that multi-touch gesture systems determine when a gesture
starts and stops as the Examiner indicates. Ans. 3. Moreover, Lemort also
distinguishes between pinch and rotation gestures by comparing the distance
and angle between contact points in paragraph 56 as the Examiner indicates.
Ans. 3^4.
The Examiner also finds that Petit recognizes gestures with a higher
velocity and acceleration at the outset—a gesture start—and various
kinematic and spatial characteristics, including speed, acceleration, and
various positions, are used to determine gestures. Ans. 5—6 (citing Petit
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60, 68). That Petit expressly states that a gesture start is detected in a
movement state in paragraph 95 only bolsters the Examiner’s finding that
Petit determines a gesture start based on movement.
To be sure, Lemort and Petit both involve touch-based systems—not
contactless systems as Appellants indicate. App. Br. 10. Nevertheless,
because both references detect a gesture start and, in particular, when at least
speed exceeds a predefined threshold as taught by Petit’s paragraph 60, we
see no reason why the start of a gesture could not be detected in a contactless
system, such as that disclosed by Van Berkel. That is, skilled artisans would
understand from these collective teachings that when an object’s movement
exceeds a particular speed, a gesture start is determined. Applying such
movement-based gesture start determinations in a contactless system would
have been at least an obvious variation within the level of ordinarily skilled
artisans yielding a predictable result—namely determining when a gesture
starts based on the object’s movement, for example, its speed. We reach this
conclusion even assuming, without deciding, that the specific signals used to
achieve that end are different in touch-based versus contactless detection
systems as Appellants contend (Reply Br. 4). Nor have Appellants shown
with persuasive evidence that providing movement-based gesture-start
determinations in a contactless system would have been uniquely
challenging or otherwise beyond the level of ordinarily skilled artisans. See
Leapfrog Enters., Inc. v. Fisher-Price, Inc., 485 F.3d 1157, 1162 (Fed. Cir.
2007); see also KSR Inti Co. v. Teleflex, Inc., 550 U.S. 398, 417 (2007).
We also find unavailing Appellants’ contention that skilled artisans
would ostensibly apply Femorf s and Petit’s teachings only to Van Berkel’s
touchpad—not its contactless detection system (Reply Br. 6). Not only is
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this assertion unsubstantiated by any persuasive evidence on this record, we
see no reason why the fundamental teachings of Lemort and Petit regarding
determining when a gesture starts based on an object’s movement, including
its speed, could not be applied to a contactless system as noted previously.
Lastly, Appellants’ contention that that cited prior art does not
disclose selectable variables as claimed (Reply Br. 6) was raised for the first
time in the Reply Brief and is, therefore, waived as untimely. See 37 C.F.R.
§ 41.41(b)(2). Although Appellants argue on page 12 of the Appeal Brief
that neither Lemort nor Petit discloses the recited variables, the opening
brief does not argue the selectability of these variables with particularity.
Therefore, we are not persuaded that the Examiner erred in rejecting
claim 1, and claims 2—6, 11, 19, 20, 22, and 31 not argued separately with
particularity.
THE OTHER OBVIOUSNESS REJECTIONS
We also sustain the Examiner’s obviousness rejections of claims 8—
10, 12—14, 17, 18, 21, 23, 25—30, 32, and 33—35. Final Act. 13—48. Because
these rejections are not argued separately with particularity, we are not
persuaded of error in these rejections for the reasons previously discussed.
CONCLUSION
The Examiner did not err in rejecting claims 1—6, 8—14, 17—23, and
25—35 under § 103.
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DECISION
The Examiner’s decision rejecting claims 1—6, 8—14, 17—23, and 25—
35 is affirmed.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(l)(iv).
AFFIRMED
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