Ex Parte Katz et al

Patent Trial and Appeal Board

Jan 25, 2019

15096674 (P.T.A.B. Jan. 25, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
15/096,674 04/12/2016 Itay Katz
22852 7590 01/29/2019
FINNEGAN, HENDERSON, FARABOW, GARRETT & DUNNER
LLP
901 NEW YORK A VENUE, NW
WASHINGTON, DC 20001-4413
UNITED ST A TES OF AMERICA
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
l 1968.00ll-04000 8274
EXAMINER
CHOWDHURY, AFROZA Y
ART UNIT PAPER NUMBER
2628
NOTIFICATION DATE DELIVERY MODE
01/29/2019 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):
regional-desk@finnegan.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte IT A Y KATZ and AMNON SHENFELD
Appeal2018-006572
Application 15/096,674
Technology Center 2600
Before JOHNNY A. KUMAR, JASON J. CHUNG, and
NORMAN H. BEAMER, Administrative Patent Judges.
KUMAR, Administrative Patent Judge.
DECISION ON APPEAL 1
1 Appellants have filed related Appeals in copending applications-U.S.
Patent Application No. 14/345,592; U.S. Patent Application No. 15/060,533;
U.S. Patent Application No. 15/090,527; U.S. Patent Application No.
15/256,481; and U.S. Patent Application No. 15/144,209. Br. 3.
Appeal2018-006572
Application 15/096,674
STATEMENT OF CASE
Appellants2 appeal under 35 U.S.C. § 134(a) from a Final Rejection of
claims 57-76. Claims 1-56 have been cancelled. Br. 36. We have
jurisdiction under 35 U.S.C. § 6(b).
We affirm.
Illustrative Claim
Illustrative claim 57 under appeal reads as follows:
57. An augmented reality device, comprising:
at least one processor configured to:
receive, from an image sensor, image information
associated with a real world scene;
detect, in the image information, a predefined hand
gesture performed by a user; and
cause a video or audio recording to be tagged
based, at least in part, on the detection.
Rejections on Appeal
Claims 57, 58, 61---63, and 74 provisionally rejected on the ground of
nonstatutory double patenting as being unpatentable over claims 57-61, 68,
74, and 78 of copending Application No. 15090527 (reference application).
Final Act. 4. 3
2 Appellants identify eyeSight Mobile Technologies Ltd., as the real party in
interest (Br. 2).
3 Arguments are not presented for this provisional rejection. Therefore, we
affirm the Examiner's rejection proforma. Except for our ultimate decision,
this rejection of these claims is not discussed further herein.
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Appeal2018-006572
Application 15/096,674
Claims 57---61 and 63-76 are rejected under 35 U.S.C. § I03(a) as
being unpatentable over Ota (US 20130050069) in view of Vadhavana et al.
(US 20120062602). Final Act. 7.
Claim 62 is rejected under 35 U.S.C. § I03(a) as being unpatentable
over Ota (US 2013/0050069 Al; Feb. 28, 2013) in view ofVadhavana et al.
(US 2012/0062602 Al; Mar. 15, 2012) in view of Chau (US 2009/0147991
Al; June 11, 2009). Final Act. 17.
Appellants ' Contentions
1. Appellants contend that the Examiner erred in rejecting claim 57
under 35 U.S.C. § 103 because:
Vadhavana fails to disclose "cause a video or audio recording ... to be
tagged based, at least in part, on the detection [ of a predefined hand
gesture performed by a user]"
Br. 11-14. (emphasis omitted).
Vadhavana 's rendered map is not tagged "based, at least in part, on
the detection [ of a predefined hand gesture performed by a user]"
Br. 14--16. ( emphasis omitted).
2. Appellants contend that the Examiner erred in rejecting claim 61
under 35 U.S.C. § 103 because:
Ota fails to disclose "record[ing] ... video information or audio
information associated with a time prior to the detected predefined
hand gesture" and "based ... on the detection or detection of a second
predefined hand gesture"
Br. 19-21. ( emphasis omitted).
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Appeal2018-006572
Application 15/096,674
Vadhavana also fails to disclose "record[ing] ... video information or
audio information ... based, at least in part, on the detection or
detection of a second predefined hand gesture"
Br. 21-22. ( emphasis omitted).
(i) Vadhavana fails to disclose "record[ing] ... video
information or audio information" and
(ii) Video information or audio information is not "based, at
least in part, on the detection or detection of a second
predefined hand gesture"
Br. 22-24. ( emphasis omitted).
3. Appellants contend that the Examiner erred in rejecting claims 62
under 35 U.S.C. § 103 because:
A. Chau fails to disclose "wherein the time is a predefined amount of
time defined by the user" and
B. Chau fails to disclose "a predefined amount of time" prior to
detection of a predefined hand gesture[]
Br. 24--26. ( emphasis omitted).
4. Appellants contend that the Examiner erred in rejecting claim 64
under 35 U.S.C. § 103 because:
A. Ota fails to disclose "captur[ing] a frame from the video
information in response to the detected predefined hand gesture" and
B. Vadhavana fails to disclose "captur[ing] a frame from the video
information in response to the detected predefined hand gesture"
Br. 27-34. ( emphasis omitted).
Issue on Appeal
Did the Examiner err in rejecting claims 57-76 as being obvious?
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Appeal2018-006572
Application 15/096,674
ANALYSIS
We have reviewed the Examiner's rejections in light of Appellants'
arguments that the Examiner has erred. We disagree with Appellants'
conclusions. Except as noted herein, we adopt as our own; ( 1) the findings
and reasons set forth by the Examiner in the action from which the appeal is
taken (Final Act. 7-23), and (2) the reasons set forth by the Examiner in the
Examiner's Answer (Ans. 2-9) in response to the Appellants' Appeal Brief.
We concur with the conclusions reached by the Examiner. We highlight the
following.
As to Appellants' above contention 1, they are unpersuasive because
they are not directed to the Examiner's specific determination. See Final
Act. 7-10. Instead, Appellants attack references individually for lacking a
teaching for which the Examiner relied on a combination of references to
show. It is well established that one cannot show nonobviousness by
attacking references individually where the rejections are based on
combinations of references. See In re Keller, 642 F.2d 413,426 (CCPA
1981); In re Merck & Co., Inc., 800 F.2d 1091, 1097 (Fed. Cir. 1986). The
effect of Appellants' argument is to raise and then knock down a straw man
rejection of claim 57 that was never made by the Examiner, in that the
Examiner did not rely solely on the one reference as argued. In other words,
Appellants argue against Examiner's findings that were never made. This
form of argument is inherently unpersuasive to show Examiner error. Our
reviewing court requires that references must be read, not in isolation, but
for what they fairly teach in combination with the prior art as a whole.
Merck, 800 F .2d at 1097.
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Appeal2018-006572
Application 15/096,674
The Examiner finds, and we agree,
Ota teaches detecting a predefined gesture performed by the
user ([0045]: "the user interaction system 100 can identify one
or more gestures being performed by the user's hand, such as
selecting, pushing, grabbing, moving, dragging, attempting to
enlarge, or other such actions").
Vadhavana clearly discloses detecting user's input on touch screen
that displays a content (see [0041] - [0042]). The content includes
various sources (live media, geo-tagged data, etc.) and/or services
(music service, video service, social networking service, etc.) (see
[0032]). Therefore, it would be obvious that Vadhavana's touch
screen device is capable of causing a video recording to be tagged
based on the detection of a gesture.
Ans. 2--4 ( emphasis omitted).
As to Appellants' contentions 2 through 4 regarding claims 61, 62,
and 64 (Br. 19-34 ), the Examiner has rebutted each of those arguments
supported by sufficient evidence. (Ans. 4--9). Therefore, we adopt the
Examiner's findings and underlying reasoning, which are incorporated
herein by reference. We see no error in these unrebutted findings.
Accordingly, we sustain the Examiner's§ 103 rejection of claims 57,
61, 62, and 64, as well as the remaining claims not separately argued.
We observe no Reply Brief is of record to rebut the Examiner's
findings and responses to Appellants' arguments about the disputed features.
Therefore, in the absence of persuasive rebuttal evidence or argument to
persuade us otherwise, we adopt the Examiner's findings and underlying
reasoning, which are incorporated herein by reference. Consequently, we
sustain the rejection of claims 57-76.
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Appeal2018-006572
Application 15/096,674
DECISION
We affirm the Examiner's rejections of claims 57-76 as being
unpatentable under 35 U.S.C. § 103(a).
We summarily affirm the Examiner's provisional rejection of claims
57, 58, 61---63, and 74 on the ground of nonstatutory obviousness-type
double patenting.
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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