Ex Parte LI

Patent Trial and Appeal Board

Jun 8, 2017

13854236 (P.T.A.B. Jun. 8, 2017)

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.
13/854,236 04/01/2013 Wenlong Li ITL.2616US (P40258) 5221
47795 7590 06/12/2017
TROP, PRUNER & HU, P.C.
1616 S. VOSS RD., SUITE 750
HOUSTON, TX 77057-2631
EXAMINER
SUN, LI P
ART UNIT PAPER NUMBER
2143
NOTIFICATION DATE DELIVERY MODE
06/12/2017 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):
tphpto@tphm.com
Inteldocs_docketing @ cpaglobal.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte WENLONG LI
Appeal 2017-003171
Application 13/854,23 61
Technology Center 2100
Before ROBERT E. NAPPI, LARRY J. HUME, and
JAMES W. DEJMEK, Administrative Patent Judges.
DEJMEK, Administrative Patent Judge.
DECISION ON APPEAL
Appellant appeals under 35 U.S.C. § 134(a) from a Final Rejection of
claims 1—10, 25, and 28-46. Claims 11—24, 26, and 27 have been canceled.
See Amend., filed August 19, 2015. We have jurisdiction over the
remaining pending claims under 35 U.S.C. § 6(b).
We reverse and enter a new ground of rejection pursuant to our
authority under 37 C.F.R. § 41.50(b).
1 Appellant identifies Intel Corporation as the real party in interest. Br. 3.
Appeal 2017-003171
Application 13/854,236
STATEMENT OF THE CASE
Introduction
Appellant’s claimed invention is directed to “computer systems
operated in response to human gestural commands.” Spec. 12. In a
disclosed embodiment, a human gestural command may be associated with a
particular person by using video analytics to (i) identity a gesture indicated
by a user’s hand; (ii) identity an arm connected to the hand; and (iii) identify
body/head connected to the identified arm. Spec. Tflf 13—14. Further, facial
recognition may be used to associate the gestural command with a particular
user. Spec. 114.
Claim 1 is illustrative of the subject matter on appeal and is
reproduced below with the disputed limitation emphasized in italics'.
1. A method comprising:
associating a hand gestural command from one person of a
plurality of persons by associating a hand with a face using computer
video analysis of the one person’s hand, arm and face.
The Examiner’s Rejections
1. Claims 1—6, 25, 28—32, and 37-42 stand rejected under
35 U.S.C. § 102(b) as being anticipated by Hildreth (US 2009/0079813 Al;
Mar. 26, 2009). Final Act. 5—9.
2. Claims 7—10, 33—36, and 43^46 stand rejected under 35 U.S.C.
§ 103(a) as being unpatentable over Hildreth, Khouri et al. (US
2011/0074911 Al; Mar. 31, 2011) (“Khouri”), and Dalit et al. (US
8,577,810 Bl; Nov. 5, 2013) (“Dalit”). Final Act. 9-14.
2
Appeal 2017-003171
Application 13/854,236
Issue on Appeal
Did the Examiner err in finding Hildreth discloses “associating a hand
gestural command from one person of a plurality of persons by associating a
hand with a face using computer video analysis of the one person’s hand,
arm and face,” as recited in claim 1 ?
ANALYSIS2
Appellant asserts in associating a hand gestural command to a user,
Hildreth does not disclose using video analysis of the user’s hand, arm, and
face. Br. 7. Rather, Appellant contends Hildreth determines the distances
between the hand giving the gestural prompt and the various faces captured.
Br. 7—8. Appellant further contends Hildreth associates the hand to a user
based on the minimum determined distance. Br. 8. In other words, Hildreth
does not associate a hand gestural command to a user based at least in part
on video analysis of the user’s arm. Br. 7—8.
In response, the Examiner notes claim 1 broadly recites “associating a
hand with a face using computer video analysis of the one person’s hand,
arm and face” without reciting details as to how such analysis is performed.
Ans. 12—13 (emphasis omitted). The Examiner finds Hildreth takes “into
consideration” a person’s hand and arm in determining the distance between
the face position and the gesture position and, ultimately, determining which
person is making the engagement hand gesture (i.e., hand gestural
command). Ans. 13 (citing Hildreth 1191, Fig. 34). The Examiner also
2 Throughout this Decision we have considered the Appeal Brief, filed
January 22, 2016 (“Br.”); the Examiner’s Answer, mailed July 15, 2016
(“Ans.”); the Final Office Action (“Final Act.”), mailed July 17, 2015, from
which this Appeal is taken.
3
Appeal 2017-003171
Application 13/854,236
finds Hildreth discloses other examples of an engagement hand gesture,
including “a circular hand motion made by extending the user’s arm in front
of their face, and moving their arm in a circle in front of their head.”
Ans. 13—14 (quoting Hildreth 1182, emphasis omitted). Accordingly, the
Examiner finds Hildreth discloses associating a hand with a face using
computer video analysis of the one person’s hand, arm, and face. Ans. 14.
Absent sufficient persuasive explanation or technical reasoning, the
Examiner’s finding that the embodiment disclosed in paragraph 191 of
Hildreth (see also Hildreth, Fig. 34) takes into consideration the arm of the
user in associating the engagement hand gesture with a user’s face is
speculative and unsupported by any evidence of record. Thus, for us to
sustain the Examiner’s rejection on the basis of only the disclosures of
paragraph 191 and Figure 34 of Hildreth, we would need to resort to
impermissible speculation or unfounded assumptions or rationales to cure
the deficiencies in the factual bases of the rejection before us, which we
decline to do. In re Warner, 379 F.2d 1011, 1017 (CCPA 1967).
We agree with the Examiner’s finding that the exemplary engagement
hand gesture disclosed in paragraph 182 of Hildreth describes a circular
hand motion made by moving the user’s arm in front of their face. See
Ans. 14 (citing Hildreth 1182). However, we note this engagement hand
gesture is different than the engagement hand gesture set forth in paragraph
191 of Hildreth.
“A claim is anticipated only if each and every element as set forth in
the claim is found, either expressly or inherently described, in a single prior
art reference.” Verdegaal Bros., Inc. v. Union Oil Co. of Cal., 814 F.2d 628,
631 (Fed. Cir. 1987). Additionally, in an anticipation rejection, “it is not
4
Appeal 2017-003171
Application 13/854,236
enough that the prior art reference . . . includes multiple, distinct teachings
that [an] artisan might somehow combine to achieve the claimed invention.”
Net MoneyIN, Inc. v. VeriSign, Inc., 545 F.3d 1359, 1371 (Fed. Cir. 2008).
Rather, the reference must “clearly and unequivocally disclose the claimed
[invention] or direct those skilled in the art to the [invention] without any
need for picking, choosing, and combining various disclosures not directly
related to each other by the teachings of the cited reference.” Net MoneyIN,
545 F.3d at 1371 (alteration in original) (quoting In re Arkley, 455 F.2d 586,
587 (CCPA 1972)). Thus, while “[s]uch picking and choosing may be
entirely proper in the making of a 103, obviousness rejection ... it has no
place in the making of a 102, anticipation rejection.” Arkley, 455 F.2d
at 587—88.
Because the Examiner relies on two separate embodiments of the
engagement hand gesture disclosed in Hildreth, we do not sustain the
Examiner’s rejection of independent claim 1 under 35 U.S.C. § 102(b). For
similar reasons, we do not sustain the Examiner’s rejection of independent
claims 25 and 37, which recite similar limitations. Additionally, we do not
sustain the Examiner’s rejections of claims 2—10, 28—36, and 38-46, which
depend therefrom.
NEW GROUND OF REJECTION
We enter a new ground of rejection pursuant to our authority under
37 C.F.R. § 41.50(b). We reject independent claims 1, 25, and 37 under 35
U.S.C. § 103(a) as being unpatentable over Hildreth (US 2009/0079813 Al;
Mar. 26, 2009).
5
Appeal 2017-003171
Application 13/854,236
Hildreth discloses a system to monitor images captured by a camera
for detecting an engagement hand gesture. Hildreth 1180. Hildreth
discloses an embodiment wherein a plurality of people are seated around a
conference table and one person raises their hand. Hildreth 1191, Fig. 34.
Hildreth further discloses associating the engagement hand gesture with the
face of the person raising their hand (i.e., performing the engagement hand
gesture) by determining a minimum hand gesture position to face position
distance. Hildreth 1191. In a separate example, Hildreth discloses the
engagement hand gesture may be a circular hand motion made by extending
the user’s arm in front of their face, and moving their arm in a circle in front
of their head. Hildreth 1182.
We find it would have been obvious to an ordinarily-skilled artisan to
substitute the circular hand motion engagement hand gesture (see Hildreth
1182) for the hand-raising engagement hand gesture (see Hildreth 1191).
“The combination of familiar elements according to known methods is likely
to be obvious when it does no more than yield predictable results.” KSR Int’l
Co. v. Teleflex Inc., 550 U.S. 398, 416 (2007). “If a person of ordinary skill
can implement a predictable variation, § 103 likely bars its patentability.”
KSR, 550 U.S. at 417.
Thus, in the suggested example, images captured by a camera (i.e.,
video analysis) are captured and analyzed to recognize and associate an
engagement hand gesture (of a person moving their hand and arm in front of
their face) with the person performing the engagement hand gesture from a
plurality of people (see Hildreth, Fig. 34). Accordingly, we find Hildreth
teaches, or reasonably suggests, “associating a hand gestural command from
one person of a plurality of persons by associating a hand with a face using
6
Appeal 2017-003171
Application 13/854,236
computer video analysis of the one person’s hand, arm and face,” as recited
in claim 1. See, e.g., Hildreth || 180, 182, 191, Fig. 34.
Independent claim 25 is directed to a non-transitory computer
readable medium storing instructions executed on a computing device to
cause the computing device to carry out the method of claim 1. We agree
with the Examiner’s finding that Hildreth discloses at least one non-
transitory computer readable medium storing instructions. Final Act. 8—9
(citing Hildreth, Fig. 2 (202)). Further, for the reasons discussed regarding
claim 1, we find Hildreth teaches, or reasonably suggests, the limitations of
independent claim 25.
Independent claim 37 is directed to an apparatus comprising a
processor to perform the method of claim 1 and a storage coupled to the
processor. We agree with the Examiner’s finding that Hildreth discloses an
apparatus comprising a processor and a storage coupled to the processor.
Final Act. 9 (citing Hildreth, Fig. 2 (202 (storage medium), 205
(processor))). Further, for the reasons discussed regarding claim 1, we find
Hildreth teaches, or reasonably suggests, the limitations of independent
claim 37.
For the reasons discussed supra, we conclude independent claims 1,
25, and 37 are obvious under 35 U.S.C. § 103(a) in view of the teachings
and suggestions of Hildreth.
The Patent Trial and Appeal Board is a review body, rather than a
place of initial examination. We have made a new rejection regarding
independent claims 1, 25, and 37 under 35 U.S.C. § 103(a), pursuant to
37 C.F.R. § 41.50(b). However, we have not reviewed the remaining claims
to the extent necessary to determine whether these claims are unpatentable
7
Appeal 2017-003171
Application 13/854,236
over Hildreth, Khouri, Dalit, or other prior art, either alone or in
combination. We leave it to the Examiner to ascertain the appropriateness of
any further rejections based on these or other references. Our decision not to
enter a new ground of rejection for all claims should not be considered as an
indication regarding the appropriateness of further rejection or allowance of
the non-rejected claims. See MPEP § 1213.03.
DECISION
We reverse the Examiner’s decision rejecting claims 1—10, 25, and
28-46 under 35 U.S.C. § 102(b).
We newly reject claims 1, 25, and 37 under 35 U.S.C. § 103(a).
This decision contains a new ground of rejection pursuant to
37 C.F.R. § 41.50(b). Section 41.50(b) provides “[a] new ground of
rejection pursuant to this paragraph shall not be considered final for judicial
review.” Section 41.50(b) also provides:
When the Board enters such a non-final decision, 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 prosecution will be
remanded to the examiner. The new ground of rejection is
binding upon the examiner unless an amendment or new
Evidence not previously of Record is made which, in the opinion
of the examiner, overcomes the new ground of rejection
designated in the decision. Should the examiner reject the
claims, Appellant may again appeal to the Board pursuant to this
subpart.
8
Appeal 2017-003171
Application 13/854,236
(2) Request rehearing. Request that the proceeding be
reheard under § 41.52 by the Board upon the same Record. The
request for rehearing must address any new ground of rejection
and state with particularity the points believed to have been
misapprehended or overlooked in entering the new ground of
rejection and also state all other grounds upon which rehearing
is sought.
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)(l)(iv). See
37 C.F.R. § 41.50(f).
REVERSED;
37 C.F.R, $ 41.50(b)
9