Ex Parte Pesonen

Patent Trial and Appeal Board

Jan 19, 2017

13807539 (P.T.A.B. Jan. 19, 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.
13/807,539 05/14/2013 Mika Pesonen 042933/426273 2387
10949 7590
Nokia Corporation and Alston & Bird LLP
c/o Alston & Bird LLP
Bank of America Plaza, 101 South Tryon Street
Suite 4000
Charlotte, NC 28280-4000
EXAMINER
MA, CALVIN
ART UNIT PAPER NUMBER
2693
NOTIFICATION DATE DELIVERY MODE
01/23/2017 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):
u sptomail @ alston .com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte MIKA PESONEN
Appeal 2016-003293
Application 13/807,5391
Technology Center 2600
Before ROBERT E. NAPPI, ST. JOHN COURTENAY III, and
SCOTT B. HOWARD, Administrative Patent Judges.
Opinion for the Board filed by Administrative Patent Judge
SCOTT B. HOWARD.
Opinion dissenting filed by Administrative Patent Judge
ST. JOHN COURTENAY III.
DECISION ON APPEAL
Appellant appeals under 35 U.S.C. § 134(a) from the Final Rejection
of claims 1, 3—11, 13—18, 25, and 26, which constitute all of the claims
pending in this application. Claims 2, 12, 19—24, and 27 have been
cancelled. App. Br. 15—19. We have jurisdiction under 35 U.S.C. § 6(b).
We reverse.
1 Appellant identifies Nokia Technologies Oy as the real party in interest.
App. Br. 2.
Appeal 2016-003293
Application 13/807,539
THE INVENTION
The disclosed and claimed invention is directed “to giving haptic
feedback to the user of an electronic device.” Abstract. Position
information and predicted future position information are used so that haptic
information in memory can be accessed faster. Abstract; Spec. 13:22—35.
Claim 1, reproduced below, is illustrative of the claimed subject
matter:
1. A method for providing haptic feedback, comprising:
- compressing haptic data for storage on a memory,
- automatically determining information on a position and a
movement of user input,
- retrieving current haptic data based on said position
information to said memory,
- automatically predicting a future position of said user input
based on said information on a position and a movement,
- retrieving future haptic data related to said future position to
said memory, wherein retrieving said future haptic data further
comprises decompressing said future haptic data, and
- automatically producing haptic feedback based on said
retrieved current and future haptic data.
REFERENCES
The prior art relied upon by the Examiner as evidence in rejecting the
claims on appeal is:
Kang US 2010/0164697 A1 July 1,2010
Ludden US 2010/0277505 A1 Nov. 4, 2010
Alarcon US 8,378,794 B2 Feb. 19,2013
REJECTION
Claims 1, 3—11, 13—18, 25, and 26 stand rejected under pre-AIA 35
U.S.C. § 103(a) as being unpatentable over Kang in view of Alarcon and
Ludden. Final Act. 2—10.
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ANALYSIS
We have reviewed the Examiner’s rejection in light of Appellant’s
arguments that the Examiner erred. In reaching this decision, we have
considered all evidence presented and all arguments made by Appellant. We
are persuaded by Appellant’s arguments that, based on the current record,
the Examiner erred.
Appellant argues the Examiner erred in finding Kang teaches
“determining information on a position and a movement of user input,” as
recited in claim 1. See App. Br. 10-11; Reply Br. 2—3. According to
Appellant, Kang does not contain any teaching or suggestion about position
information. Id. Instead, Appellant contends Kang merely teaches
‘“movement direction or acceleration according to movement.’” App. Br.
10 (quoting Kang 134).
The Examiner finds Kang teaches “automatically determining
information on a position and a movement of user input (i.e. the user
position is detected via the movement recognition unit).” Final Act. 2
(citing Kang 133, Fig. 1). The Examiner further finds “Kang tracks the
vector position of the user together with the device to create the haptic
feedback data by sensing changes in the positon of the device to create
movement and acceleration calculations.” Ans. 3.
During examination of a patent application, a claim is given its
broadest reasonable construction “in light of the specification^ as it would
be interpreted by one of ordinary skill in the art.” In re Am. Acad, of Sci.
Tech Ctr., 367 F.3d 1359, 1364 (Fed. Cir. 2004) (internal citations and
quotations omitted). There is a presumption that a claim term carries its
ordinary and customary meaning. In re Translogic Tech., Inc., 504 F.3d
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1249, 1257 (Fed. Cir. 2007). An applicant may rebut this presumption,
however, by acting as his own lexicographer, providing a definition of the
term in the specification with “reasonable clarity, deliberateness, and
precision.” See In re Paulsen, 30 F.3d 1475, 1480 (Fed. Cir. 1994). In the
absence of such a definition, limitations are not to be read from the
specification into the claims. In re Van Geuns, 988 F.2d 1181, 1184 (Fed.
Cir. 1993). “[Although the specification often describes very specific
embodiments of the invention, we have repeatedly warned against confining
the claims to those embodiments. . . . [CJlaims may embrace ‘different
subject matter than is illustrated in the specific embodiments in the
specification.’” Phillips v. AWHCorp., 415 F.3d 1303, 1323 (Fed. Cir.
2005) (en banc) (citations omitted).
Applying the broadest reasonable construction, we agree with the
Examiner that Kang either teaches or suggests “information on a position,”
as recited in claim 1. The Examiner finds, and we agree, Kang teaches
haptic feedback based on measuring movement direction and acceleration.
See Kang || 33—38. We further agree with the Examiner that “the
movement explained in the process is based on the position change of the
user with respect to the device itself as it must track user’s activity while
holding the device.” Ans. 2. For example, Kang teaches tracking the
relative position of the device as it moves, such as relative movement up and
down. See, e.g., Kang || 53, 56. Although Kang may not explicitly teach
determining an absolute position, the claim is not so limited and the broadest
reasonable construction of “information on a position” is broad enough to
encompass the relative position information taught by Kang.
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We are also not persuaded by Appellant’s contention that Kang
discloses “that the sensor used in example embodiments is a gyroscope
sensor that is incapable of determining location.” Reply Br. 3 (citing Kang
136). That argument is not supported by the reference. Kang states at
paragraph 36 as follows:
The movement recognition unit 100 detects the movement
direction or the acceleration of the portable terminal under the
control of the controller 110 and provides the detected
movement direction or the acceleration to the controller 110.
Herein, an example of the gyroscope is a gravity (G) sensor
which determines a movement of an object by using gravity.
Contrary to Appellant’s assertion, Kang does not state the gyroscope is
incapable of detecting position information. To the contrary, Kang
explicitly teaches detecting a relative position, such as up or down. See
Kang 1153, 56. Therefore, we find Kang teaches or suggests to a person of
ordinary skill in the art determining position information based on
acceleration or the direction of movement.
Appellant also argues the Examiner erred in finding Kang teaches or
suggests “predicting a future position of said user input based on said
information on a position and a movement,” as recited in claim 1. App. Br.
11; Reply Br. 3^4. According to Appellant, “Kang is directed to purely
reactive movement determination and has no teaching or suggestion that
there is any prediction of a future position of the user input.” App. Br. 11
(citing Kang H 36—37); see also Reply Br. 3. For example, Appellant
argues that although “[t]he Examiner’s Answer recites that ‘acceleration data
as taught in Kang is mathematically determined with respect to time and
position traveled[,]’ Appellant notes that there is no supporting disclosure
within Kang for this statement, and no disclosure has been cited as
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supporting this feature.” Reply Br. 3 (citation omitted). Appellant also
argues because “Kang fails to teach or suggest an original position or
location of a device” it cannot determine a possible future location. App. Br.
11.
The Examiner finds “[acceleration data as taught in Kang is
mathematically determined with respect to time and position traveled.” Ans.
3. The Examiner further finds “the movement detection process is actually
determining the posit[i]on of the device in the immediate future as it travels
through space.” Id. The Examiner also finds Kang teaches or suggests
calculating a predicted location in the future as part of determining the
acceleration or direction of movement. Ans. 3^4.
We are persuaded by Appellant’s arguments as the Examiner has not
identified sufficient evidence or provided sufficient explanation as to how
Kang teaches or suggests “predicting a future position of said user input
based on said information on a position and a movement,” as recited in
claim 1. Kang is directed to providing haptic feedback based on movement
of the device, such as with a game controller. Kang || 3, 8. The device
generates haptic feedback, such as vibration, based on a movement pattern.
Id., at H 51—57. After the device determines the direction of movement or
acceleration, haptic data is generated based on the direction of movement or
acceleration. Id. Figs. 2, 3. Although we find Kang provides sufficient
information, such as acceleration or direction of movement, from which one
of ordinary skill in the art could predict a future position, Kang does not
provide any teaching or suggestion of a predicted device position and does
not actually make such a prediction. Nor, on this record, does the Examiner
make any findings as to why a person of ordinary skill in the art would have
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a reason to modify Kang to make a prediction of a future position. Nor do
we find the Examiner’s finding that Kang calculates a future position when
it determines the direction of movement or acceleration supported by the
current record.
Rejections based on obviousness must be supported by “some
articulated reasoning with some rational underpinning to support the legal
conclusion of obviousness.” In re Kahn, 441 F.3d 977, 988 (Fed. Cir. 2006),
cited with approval in KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 418
(2007). A rejection cannot be based on “speculation, unfounded
assumptions or hindsight reconstruction to supply deficiencies in its factual
basis.” In re Warner, 379 F.2d 1011, 1017 (CCPA 1967). We determine
that the Examiner’s findings on predicting a future position are mere
speculation and not supported by the record.
Because we agree with at least one of the dispositive arguments
advanced by Appellant, we need not reach the merits of Appellant’s
remaining arguments.
Accordingly, we are constrained on this record to reverse the
Examiner’s rejection of claim 1, along with the rejections of claims 11, 25,
and 26, which recite limitations commensurate in scope to the disputed
limitations discussed above, and dependent claims 3—10 and 13—18.
DECISION
For the above reasons, we reverse the Examiner’s decision rejecting
claims 1, 3—11, 13—18, 25, and 26.
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REVERSED
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COURTENAY, Administrative Patent Judge dissenting'.
I respectfully dissent regarding the reversal of the rejection of
independent claim 1, and all remaining claims not separately argued. I
would affirm the Examiner’s rejection under 35 U.S.C. § 103(a), in
accordance with the reasoning and findings of the Examiner, as set forth in
the Final Action (2-4) and the Answer (2-4), and for the reasons discussed
infra.
Appellant’s Specification broadly describes a predicted future position
using temporal terms: “predicting the future position based on a current
position, at least one past position, distance of the current position and the at
least one past position and direction from the at least one past position to the
current position.” (Spec. 2,11. 15—18) (emphasis added).
Regarding the contested claim 1 limitation of “automatically
predicting a future position of said user input based on said information on a
position and a movement,” the majority acknowledges: “Kang provides
sufficient information, such as acceleration or direction of movement, from
which one of ordinary skill in the art could predict a future position . . . .”
(Opinion 6).
Nevertheless, the majority finds:
Kang does not provide any teaching or suggestion of a
predicted device position and does not actually make such a
prediction. Nor, on this record, does the Examiner make any
findings as to why a person of ordinary skill in the art would
have a reason to modify Kang to make a prediction of a future
position. Nor do we find the Examiner’s finding that Kang
calculates a future position when it determines the direction of
movement or acceleration supported by the current record.
(Opinion 6—7).
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However, our reviewing court guides that “the question under 35 USC
§ 103 is not merely what the references expressly teach but what they would
have suggested to one of ordinary skill in the art at the time the invention
was made.” Merck & Co., Inc. v. Biocraft Laboratories, Inc., 874 F.2d 804,
807-808 (Fed. Cir. 1989), cert, denied, 493 U.S. 975 (1989); see also MPEP
§2123. Moreover, “[e]very patent application and reference relies to some
extent upon knowledge of persons skilled in the art to complement that
[which is] disclosed. . . .” In re Bode, 550 F.2d 656, 660 (CCPA 1977)
(quoting In re Wiggins, 488 F.2d 538, 543 (CCPA 1973)). Those persons
“must be presumed to know something” about the art “apart from what the
references disclose.” In re Jacoby, 309 F.2d 513, 516 (CCPA 1962).
Here, the majority declines to look beyond the express teachings of
the reference(s) to consider the knowledge and level of skill of an artisan at
the time of the invention, as an important factor in the obviousness analysis.2
Such approach departs from the guidance of Graham v. John Deere Co. of
Kan. City, 383 U.S. at 17—18. Instead, the majority “determine[s] that the
Examiner’s findings on predicting a future position are mere speculation and
not supported by the record.” (Opinion 7) (emphasis added).
However, I agree with the Examiner (Ans. 3 4) that simple
calculations known to artisans possessing an ordinary level of skill in the art
at the time of the invention (and not speculation) are all that is required to
2 Obviousness is a question of law with several underlying factual inquiries:
(1) the scope and content of the prior art; (2) the differences between the
prior art and the claims at issue; (3) the level of ordinary skill in the field
of the invention; and (4) objective considerations such as commercial
success, long felt but unsolved need, and the failure of others. Graham v.
John Deere Co. of Kan. City, 383 U.S. 1, 17—18 (1966); see also KSR Int’l
Co., v. Teleflex, Inc., 550 U.S. 398, 406 (2007). (Emphasis added).
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render obvious the contested step of “automatically predicting a future
position of said user input based on said information on a position and a
movement. . . (Claim 1).
I fully concur with the finding of the majority that “Kang provides
sufficient information, such as acceleration or direction of movement, from
which one of ordinary skill in the art could predict a future position.”
(Opinion 6). Further, I find that known, familiar elements such as
acceleration and direction of movement (Kang || 35—38), when considered
in combination using known methods (i.e., basic math and calculus) would
have merely realized a predictable result (i.e., “predicting a future position”
within the meaning of claim 1).
The Supreme Court guides that the conclusion of obviousness can be
based on the interrelated teachings of multiple patents, the effects of
demands known to the design community or present in the marketplace, and
the background knowledge possessed by a person having ordinary skill in
the art. KSR, 550 U.S. at 418. The skilled artisan is “a person of ordinary
creativity, not an automaton.” Id. at 420—21.
As found by the Examiner:
Acceleration data as taught in Kang is mathematically
determined with respect to time and position traveled. Since,
Kang teaches movement direction and acceleration data, the
movement detection process is actually determining the positon
of the device in the immediate future as it travels through space.
Specifically, Kang teaches in paragraph [0038] "a haptic data
generation event is occurred, the controller 110 controls the
movement recognition unit 100 to determine the movement
direction or the acceleration according to the movement of the
portable terminal." Here, the movement direction data is the
first derivative from the movement which requires different
positions being travel[ed] in a given time to create a vector
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quantity, the acceleration vector required by Kang is the second
derivative for position which also predicts a future position as
the velocity changes is based on positional changes. Therefore,
in order to calculate the acceleration data and the direction
vector data the process of Kang is in fact predicting the future
position of the portable terminal device as it travels in space in
the immediate event of [the] user moving the device in the real
space. For this reason, the figures 1-3 embodiment of Kang
successfully predict the future position of the device with the
movement recognition unit as it calculates acceleration and
direction data.
(Ans. 3—4).
Kang (| 35), in pertinent part, expressly teaches:
The gyroscope may determine the movement direction or the
acceleration of the portable terminal. For example, the
gyroscope implicitly translates direction information with
respect to an orientation associated with the mobile phone into
an absolute frame of reference so that when the mobile phone is
moved in a certain direction, the gyroscope obtains an offset
from which a deviation can be calculated, etc.
(Emphasis added).
Given this evidence, I agree with the Examiner (Ans. 3—4), that
Kang’s express description of acceleration in a particular direction is a
vector quantity (having a magnitude and direction). Therefore, I find Kang’
acceleration vector is at least suggestive 3 of “predicting a future position,”
within the meaning of claim 1, because acceleration is a change in velocity
with respect to time when moving through space. An acceleration vector
may thus be used to calculate a position at a future time t, relative to an
initial reference (past) position, because acceleration is defined as the
3 See Merck & Co, 874 F.2d at 807-808 (Fed. Cir. 1989).
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derivative of velocity, with respect to time, and velocity is defined as the
derivative of position, x, with respect to time. Thus, as pointed out by the
Examiner (Ans. 4), acceleration is the second derivative of position x, with
respect to time.
If the acceleration and direction are known or measured (as taught by
Kang || 33—38) then the velocity vector can be obtained by taking the
antiderivative of the acceleration vector (i.e., integrating the acceleration
vector with respect to time), and the velocity vector and past reference
position can be used to estimate the current position or predict a future
position at a time t.
On this record, I find Appellant has not shown that “automatically
predicting a future position of said user input based on said information on a
position and a movement” (claim 1) would have been anything more than a
“combination of familiar elements according to known methods” to yield
predictable results, where the predictable result here is “predicting a future
position,” as recited in claim 1. See KSR, 550 U.S. at 416. It is well settled
that merely providing an automatic means to replace manual activity to
accomplish the same result is an obvious improvement. See In re Venner,
262 F.2d 91, 95 (CCPA 1958).
Following this guidance, on this record, and by a preponderance of the
evidence, I am not persuaded of error regarding the Examiner’s ultimate
legal conclusion of obviousness. For an artisan having an ordinary level of
skill in the art (i.e., knowledge of basic mathematics and calculus), and
having knowledge of Kang’s teachings, it is my view that it would not have
been “uniquely challenging or difficult for one of ordinary skill in the art” to
arrive at the invention claimed by Appellant. Leapfrog Enters., Inc. v.
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Fisher-Price, Inc., 485 F.3d 1157, 1162 (Fed. Cir. 2007) (citing KSR, 550
U.S. at 418). Nor has Appellant provided objective evidence of secondary
considerations (such as unexpected results) which our reviewing court
guides “operates as a beneficial check on hindsight.” Cheese Systems, Inc.
v. Tetra Pak Cheese and Powder Systems, Inc., 725 F.3d 1341, 1352 (Fed.
Cir. 2013).
Further, the majority relies (Opinion 4—5), inter alia, on Kang’s
paragraph 53, in finding that Kang teaches determining information on a
(relative) position, such as up or down. Paragraph 53 also refers to case B
403 (Fig. 4), that is described as “a result from the analysis of the movement
direction or the acceleration of the portable terminal [that] may denote [] the
portable terminal moves a short motion and a long motion in [an] up and
down direction repeatedly.”
Buttressing the Examiner’s findings, I find such movement patterns
(e.g., Kang, Figs. 4—5, A 401, B 403) are movement prediction patterns that
are used for purposes of matching future device movements to trigger a
corresponding stored haptic pattern (e.g., see Fig. 4, depicting corresponding
haptic vibration patterns A 411, B 413). See also, e.g., Kang, paragraph 57:
“the haptic data according to the movement pattern of the portable terminal
may vary according to an implementation scheme and a configuration
scheme. Hence, the portable terminal generates a vibration corresponding
to the haptic data in step 207.” According to one described embodiment
(1 65), Kang’s haptic pattern can be transmitted from the portable terminal
to a peer portable terminal, whereby “a user of the peer portable terminal
503 may feel an identical vibration with a user of the portable terminal 501
which transmits the haptic data.” (Kang, 166).
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For at least the aforementioned reasons, I vote to affirm the
Examiner’s rejection of representative claim 1 as being obvious over the
cited combination of Kang, Alarcon, and Ludden, for essentially the same
reasons set forth by the Examiner in the Final Action and Answer, as further
discussed above.
Because Appellant has not advanced separate, substantive arguments
for the remaining claims on appeal (with the possible exception of dependent
claims 3 and 13), all claims but claims 3 and 13 should fall with
representative claim 1. (See App. Br. 10-14). See 37 C.F.R.
§ 41.37(c)(l)(iv).
Because the majority does not specifically reach the rejection of
dependent claims 3 and 13 with separate analysis, I need not reach claims 3
and 13 for the purpose of this dissent; however, I disagree with the majority
that dependent claims 3 and 13 should stand with claims 1 and 11 for the
reasons given in the analysis of claim 1, as set forth in the majority opinion
supra. See Ans. 5.
SJC
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