Daniel Kurz

Patent Trials and Appeals Board

Sep 13, 2019

15274968 - (D) (P.T.A.B. Sep. 13, 2019)

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.
15/274,968 09/23/2016 Daniel Kurz P28517USC1
(119-1148USC1)
7083
61947 7590 09/13/2019
Apple - Blank Rome
c/o Blank Rome LLP
717 Texas Avenue, Suite 1400
HOUSTON, TX 77002
EXAMINER
HARRIS, DOROTHY H
ART UNIT PAPER NUMBER
2625
NOTIFICATION DATE DELIVERY MODE
09/13/2019 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):
houstonpatents@blankrome.com
mbrininger@blankrome.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________________

Ex parte DANIEL KURZ
____________________

Appeal 2018-004740
Application 15/274,968
Technology Center 2600
____________________

Before JUSTIN BUSCH, BETH Z. SHAW, and JASON M. REPKO,
Administrative Patent Judges.

BUSCH, Administrative Patent Judge.

DECISION ON APPEAL
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s decision to reject claims 31–35 and 37–50, which constitute all
the claims pending. Claims 1–30 and 36 were canceled previously. We have
jurisdiction over the pending claims under 35 U.S.C. § 6(b).
We affirm.
CLAIMED SUBJECT MATTER
Appellant’s invention generally relates to touch detection between two
objects using thermal images. Spec. ¶¶ 2, 15, Abstract. More specifically,

1 We use the word “Appellant” to refer to “applicant” as defined in
37 C.F.R. § 1.42. Appellant identifies the real party in interest as Apple Inc.
Appeal Br. 3.
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the claimed invention relates to obtaining a thermal image of an object,
determining a pattern of either a value or range of temperatures or
temperature change, and using the variance of temperature measurements in
the image to determine another object touched the imaged object. Spec. ¶¶ 2,
15–13. Claims 31, 49, and 50 are independent claims. Claim 31 is
reproduced below:
31. A method of detecting a touch between at least part
of a first object and at least part of a second object, wherein the
at least part of the first object has a different temperature than the
at least part of the second object, comprising the steps of:
receiving a thermal image of a portion of the second
object;
determining temperature measurements based on different
locations in the thermal image; and
in response to determining that a variance of the
temperature measurements associated with the thermal image
satisfies a criterion, determining a touch between the at least part
of the first object and the at least part of the second object.

REJECTIONS2
Claims 31–35, 37–39, 44–46, 49, and 50 stand rejected under
35 U.S.C. § 103 as obvious in view of Elliot N. Saba et al., Dante Vision: In-
Air and Touch Gesture Sensing for Natural Surface Interaction with
Combined Depth and Thermal Cameras, ESPA 2012 (2012) and Eric Larson
et al., HeatWave: Thermal Imaging for Surface User Interaction, CHI 2011
(May 7, 2011). Final Act. 7–16.

2 Claim 49 was rejected under 35 U.S.C. § 101 as being directed to non-
statutory subject matter, and claim 40 was rejected under 35 U.S.C. § 112(b)
as indefinite, Final Act. 4–7, but were withdrawn in an Advisory Action
mailed October 16, 2017, and, therefore, are not before us.
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Claims 40–43 stand rejected under 35 U.S.C. § 103 as obvious in
view of Saba, Larson, and Linda G. Shapiro & George Stockman,
COMPUTER VISION 1 –61 (2000). Final Act. 16–18.
Claims 47 and 48 stand rejected under 35 U.S.C. § 103 as obvious in
view of Saba, Larson, and Stafford (US 2013/0257751 A1; Oct. 3, 2013).
Final Act. 19–20.
ANALYSIS
The Examiner finds the combination of Saba and Larson teaches or
suggests every limitation recited in independent claims 31, 49, and 50. Final
Act. 7–10, 16. More specifically, the Examiner finds Saba teaches or
suggests every limitation recited in claims 31, 49, and 50, except “Saba does
not appear to expressly disclose determining a touch from a single thermal
image.” Final Act. 7–9. However, the Examiner finds “Larson teaches
determining user interaction with a surface based on single image frame
using detected heat trails.” Final Act. 9–10 (citing Larson Fig. 3 and
Larson’s section titled “Advantages of Thermal Imaging”).
Appellant argues the rejection of claims 31–35, 37–39, 44–46, 49, and
50 as a group. Appeal Br. 5–6 (“Claims 32-35, 37-39, and 44-46 are
allowable, at least by virtue of depending from an allowable claim. Claims
49 and 50 include elements analogous to the elements of claim 31 not
disclosed by Saba and Larson. Hence, Claims 49 and 50 are allowable.”).
We select independent claim 31 as representative. See 37 C.F.R.
§ 41.37(c)(1)(iv).
Appellant notes the Examiner’s acknowledgment that Saba fails to
disclose “determining a touch based on a variance of temperature
measurements in a single image” (the “disputed limitation”) and contends
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Larson also fails to disclose this limitation. Appeal Br. 5–6; Reply Br. 3.3
More specifically, Appellant argues that, although Larson’s Figure 3 depicts
detected heat trails using a real-time algorithm, Larson’s algorithm
calculates a “smoothed temperature” and a “temporal derivative” over five
frames. Appeal Br. 6. Appellant argues Larson’s heat traces, therefore, are
“based on a variance of temperature values from five frames” and Larson
does not teach the disputed limitation because Larson “does not describe
determining a touch based on a variance of temperature measurements in a
single image.” Appeal Br. 6.
The Examiner finds that determining a touch between, for example, a
hand and a surface may involve analyzing residual heat trails in a single
image as long as the objects in the system and their properties are known.
Ans. 2–3. The Examiner responds to Appellant’s arguments by noting that,
although claim 31 recites the “determining a touch” step is “in response to
determining that a variance of the temperature measurements associated
with the thermal image satisfies a criterion,” claim 31 does not require the
recited “thermal image” to be the only data used to determine a touch.
Ans. 3. The Examiner then finds Larson’s Figure 3 depicts a single thermal
image including residual heat trails (heat traces), and Larson’s residual heat
trails are determined based on a variance of temperature measurements
associated with the (single) thermal image. Ans. 3.
Appellant argues prosecution history—i.e., having previously
amended claim 31 to recite “the” thermal image instead of “at least one”
thermal image—and prior arguments—i.e., prior assertions that Larson does

3 Appellant’s Reply Brief is not numbered, but we refer to the brief using
page numbers 1 through 4, with the cover page being page 1.
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not teach detecting a touch based on measurements from one image—
narrow claim 31 to exclude embodiments in which the detecting a touch step
is based on more than one thermal image. Reply Br. 2. Appellant asserts the
Specification supports two different techniques in which touch detection is
based on a single thermal image. Reply Br. 3 (citing Spec. ¶¶ 87, 94).
Initially, we note, and Appellant does not appear to contest, that
Appellant’s Specification discloses embodiments in which touch detection is
based on more than one thermal image, or based on a thermal image in
addition to other images. See, e.g., Spec. ¶¶ 97–106, Figs. 5–7. When
construing claim terminology during prosecution before the Office, claims
are to be given their broadest reasonable interpretation consistent with the
Specification, reading claim language 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). We are mindful,
however, that limitations are not to be read into the claims from the
Specification. In re Van Geuns, 988 F.2d 1181, 1184 (Fed. Cir. 1993).
Because “applicants may amend claims to narrow their scope, a broad
construction during prosecution creates no unfairness to the applicant or
patentee.” In re ICON Health & Fitness, Inc., 496 F.3d 1374, 1379 (Fed.
Cir. 2007) (citation omitted).
We are not persuaded by Appellant’s arguments. Even accepting
Appellant’s argument that the recited thermal image does not encompass
more than one thermal image, such a restriction limits only the following
clauses recited in claim 31: (1) “determining temperature measurements
based on different locations in the [single] thermal image”; and
(2) “determining that a variance of the temperature measurements associated
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with the [single] thermal image satisfied a criterion.” In other words, as the
Examiner notes, Ans. 3, the recited method requires determining a touch
between two objects “in response to determining that a variance of the
temperature measurements associated with the thermal image satisfies a
criterion,” but claim 31 does not preclude considering other additional
factors, as long as the determination is in response to the variance of the
temperature measurements associated with the single thermal image
satisfying a criterion.
Appellant does not dispute the Examiner’s findings regarding Saba’s
teachings or the Examiner’s rationale for combining Saba and Larson.
Therefore, we need only address whether the combination of Saba and
Larson teaches or suggests “in response to determining that a variance of the
temperature measurements associated with the thermal image satisfies a
criterion, determining a touch between” two objects. As the Examiner finds,
Larson’s Figure 3 depicts “[d]etected heat trails . . . shown in blue from our
real-time algorithm from a single frame of video.” Larson Fig. 3 (emphasis
added).
Appellant is correct that Larson’s algorithm calculates a smoothed
temperature and a temporal derivative over five frames. See Larson’s section
titled “Uncalibrated Heat Trace Detection.” However, even to the extent
Larson uses five frames to create heat traces, Larson at least suggests
determining a variance of temperatures measurements in one frame as
compared to other temperature measurements in that frame as well as other
temperature measurements in the other four frames because the different
colors in a single image represent different temperatures. See Larson Fig. 3.
Furthermore, claim 31 requires the variance of temperature measurements
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associated with the thermal image satisfies a criterion. The broadest
reasonable interpretation of this limitation encompasses determining that
temperature measurements in the (single) thermal image vary from
temperature measurements in a different image by an amount that satisfies
the criterion because each of Larson’s other four frames used in its algorithm
are associated with the first frame at least with respect to calculating the
smoothed temperature and temporal derivative for a particular heat trace.
Larson therefore discloses a single image showing residual heat traces
on a surface after another object touched the surface. Larson’s heat trails
show variances in temperatures across the image. Accordingly, combining
Larson’s teachings with Saba’s uncontested disclosures, we agree with the
Examiner that the combination of Saba and Larson teaches or suggests “in
response to determining that a variance of the temperature measurements
associated with the thermal image satisfy a criterion, determining a touch
between” two objects.
For the reasons discussed above, we sustain the Examiner’s rejection
of independent claims 31, 49, and 50 as obvious in view of Saba and Larson.
We also sustain the Examiner’s rejection of dependent claims 31–35, 37–39,
44–46, 49, and 50, which Appellant did not argue separately with
particularity. Appellant argues claims 47 and 48 are allowable because they
depend from claim 31 and Stafford, additionally recited in the rejection of
claims 47 and 48, does not cure the alleged deficiencies in Saba and Larson
with respect to the disputed limitation. Appeal Br. 7, 9. Because we find no
deficiency in the rejection of claim 31, we also sustain the Examiner’s
rejection of dependent claims 47 and 48 in view of Saba, Larson, and
Stafford.
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In addition to arguing claims 40–43 are patentable due to their
dependency from claim 31, Appellant separately argues the patentability of
claim 40, and claims 41–43 depending therefrom, asserting none of Saba,
Larson, and Shapiro teach claim 40’s additionally recited step of
“determining a derivative of temperature with respect to position in the
thermal image based on the temperature measurements, the temperature
measurements corresponding to a temperature distribution of a sample line
in the thermal image.” Appeal Br. 7–8. Appellant notes the Examiner
acknowledges that neither Saba nor Larson disclose this determining
limitation, and Appellant argues Shapiro cannot teach this determining
limitation because Shapiro does not relate to thermal images and, therefore,
cannot “disclose determining a derivative with respect to a position in a
thermal image.” Appeal Br. 7. Appellant contends that, because none of
Saba, Larson, and Shapiro individually disclose this limitation, the
combination cannot disclose this limitation. Appeal Br. 8. Appellant also
argues the Examiner’s proposed combination is deficient because the
Examiner failed to explicitly and clearly articulate why determining a touch,
as recited in claim 40, would have been obvious in view of the proposed
combination even though Shapiro’s teachings relate to detecting boundaries
between objects. Appeal Br. 8.
The Examiner notes the rejection relies on a finding that the
combination of Saba and Larson teaches or suggests each limitation recited
in independent claim 1, from which claim 40 depends. Ans. 4. In other
words, the Examiner finds Saba and Larson, not Shapiro, disclose
determining a touch based on temperature variance measurements in thermal
images. Ans. 4. The Examiner finds Larson teaches gesture and touch
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detection systems that use edge detection and Shapiro teaches edge detection
using derivatives. Final Act. 17 (citing Shapiro § 5.6, Fig. 5.18; Ans. 4). The
Examiner concludes claim 40 would have been obvious because a person of
ordinary skill in the art would have applied Shapiro’s derivative calculations
to detect edges in the Saba-Larson thermal image touch-detection system to
identify boundaries between the objects represented by heat traces. Final
Act. 17. The Examiner further explains Shapiro’s teachings “would be
applicable to image intensity values including thermal image intensity
values.” Ans. 5. The Examiner determines combining Shapiro’s known
image analysis techniques with Saba and Larson’s known thermal image
touch detection systems and methods would have yielded predictable results.
Final Act. 17.
Claim 40’s recitation of determining temperature derivatives with
respect to position merely requires calculating a derivative of temperatures
with respect to positions in the thermal image. The Examiner proposes
applying Shapiro’s teaching that derivatives can be used to calculate edges
between two objects based on “intensity differences,” Shapiro 12–16, to the
“edges” between two objects represented by Saba-Larson’s varying thermal
image intensity values. Appellant presents no persuasive argument why
applying Shapiro’s teaching of using derivatives, which are simply
mathematical functions performed on numbers, on image intensity values in
Saba-Larson’s thermal image would have been beyond the abilities of an
ordinarily skilled artisan or yielded unpredictable results. Therefore, we are
not persuaded the Examiner erred in rejecting claim 40, or claims 41–43,
which Appellant does not argue separately with particularity.
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CONCLUSION
In summary:
Claims
Rejected
Basis Affirmed Reversed
31–35, 37–39, 44–46,
49, and 50
§ 103 Saba, Larson 31–35, 37–39,
44–46, 49, and 50

40–43 § 103 Saba, Larson,
Shapiro
40–43
47, 48 § 103 Saba, Larson,
Stafford
47, 48
Overall Outcome 31–35, 37–50
AFFIRMED