Geoffry Westphal

Patent Trials and Appeals Board

Mar 2, 2022

2020004853 (P.T.A.B. Mar. 2, 2022)

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. 12/361,072 01/28/2009 Geoffry A. Westphal 31083.28US1 7575 34018 7590 03/02/2022 Greenberg Traurig, LLP 77 W. Wacker Drive Suite 3100 CHICAGO, IL 60601-1732 EXAMINER SCHNIREL, ANDREW B ART UNIT PAPER NUMBER 2625 NOTIFICATION DATE DELIVERY MODE 03/02/2022 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): chiipmail@gtlaw.com clairt@gtlaw.com jarosikg@gtlaw.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND Ex parte GEOFFRY A. WESTPHAL Appeal 2020-004853 Application 12/361,072 Technology Center 2600 Before JOHN A. JEFFERY, BRADLEY W. BAUMEISTER, and DENISE M. POTHIER, Administrative Patent Judges. POTHIER, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Appellant1,2 appeals under 35 U.S.C. § 134(a) from the rejection of claims 12-17. Appeal Br. 1. We AFFIRM. 1 Throughout this opinion, we refer to the Final Action (Final Act.) mailed December 12, 2019, the Appeal Brief (Appeal Br.) filed February 24, 2020, the Examiner’s Answer (Ans.) mailed April 17, 2020, and the Reply Brief (Reply Br.) filed June 12, 2020. 2 “Appellant” refers to “applicant” as defined in 37 C.F.R. § 1.42. Appellant identifies the real party in interest as W.W. Grainger, Inc. Appeal Br. 2. Appeal 2020-004853 Application 12/361,072 2 This appeal returns to us from a prior Board decision, Appeal No. 2018-004110, mailed on June 26, 2019.3 In that decision, we affirmed some of the rejections of claims 12-17 and entered a new ground of rejection for claims 12-17 under 35 U.S.C. § 112, first paragraph (pre-AIA). Appellant’s invention relates to input devices for computers, including a computer mouse that provides a touchless input interface. Spec. 1:4-5. In one embodiment, a mouse (e.g., 100) has sensor subsystems (e.g., 114L/114R) that sense surface movements (e.g., user’s finger movements) representing finger gestures, such as finger taps or swipes, proximate to one or both sides of the mouse. Id. at 4:17-5:17, Figs. 1-2. These sensed movements may be used by a computer to cause (1) locations on a computer display to be pointed to or designated or (2) information on the computer display to be moved and/or selected. Id. at 5:10-6:21. Independent claim 12 reads as follows: 12. A computer input device, comprising: a housing in which is carried a processing circuit; a memory having instructions for controlling operations of the processing circuit; first and second touchless sensor subsystems in communication with the processing circuit, each of the first and second touchless sensor subsystems being adapted to sense a movement of a corresponding one of first and second objects in each of three-dimensions relative to the housing occurring in spaced proximity to the housing and to provide to the processing circuit a signal indicative of a determined direction, magnitude, and speed of the sensed movement of the corresponding one of the first and second objects relative to the housing occurring in spaced proximity to the housing; and 3 In that decision, we noted another prior Board decision, Appeal No. 2013- 010168, mailed June 22, 2016. Appeal 2020-004853 Application 12/361,072 3 a transmission circuit under control of the processing circuit for issuing transmission signals to a computer in response to the signal provided by each of the first and second touchless sensor subsystems such that the transmission signals correspond to a combination of the determined direction, magnitude, and speed of the sensed movement of the corresponding one of the first and second objects relative to the housing occurring in spaced proximity to the housing; wherein the first and second touchless sensor subsystems are spaced from each other on the housing and wherein the first and second objects are different, discrete objects. Appeal Br. 9 (Claims App.). On the record before us, we are unpersuaded of error. THE MAIN OBVIOUSNESS REJECTION Claims 12-15 and 17 are rejected under 35 U.S.C. § 103(a) as being unpatentable over Hinckley (U.S. 6,559,830 B1, issued May 6, 2003), Low (US 2004/0046741 A1, published Mar. 11, 2004), and Hildreth (US 2008/0273755 A1, published Nov. 6, 2008). Final Act. 2-9. The Examiner finds that Hinckley teaches most of claim 12’s recitations. Id. at 2-5 (citing Hinckley 3:46-65, 5:38-55, 6:5-7:15, 7:54-8:5, 8:62-9:3, 15:18-27, Figs. 1, 2, 4C, 9); Ans. 4-6 (same). The Examiner states: Hinckley et al. is silent with regards to the sensing a movement being sensing a movement is each of the three dimensions relative the housing occurring in spaced proximity to the housing; a signal indicative of the sensed movement being a signal indicative of a determined direction, magnitude, and speed of the sensed movement; a combination of the sensed movement being a combination of a determined direction, magnitude, and speed of the sensed movement. Appeal 2020-004853 Application 12/361,072 4 Final Act. 5. The Examiner relies on Low and Hildreth to teach these features. Id. at 5-7 (citing Low ¶¶ 7, 22, 25-26, 31-32, 34, 59, Figs. 1-2; Hildreth ¶¶ 46, 69, 73, 105, 115, 129, 137, Fig. 1); see Ans. 7-8 (same). Appellant contends that Hildreth does not expressly describe sensing a magnitude of finger movement, but rather measures a finger’s width to determine whether a finger is closer or further away from a camera. Appeal Br. 5-6 (citing Hildreth ¶ 105). For this reason, Appellant argues that “Hildreth does not expressly disclose, teach, or suggest providing a signal having data indicative of a magnitude of the sensed movement of the finger in each of three dimensions . . . .” Id. at 6. Appellant further argues that Hildreth does not expressly teach sensing a speed of a finger’s movement (id.) or determining changes in a finger’s position over time. See id. at 6-7 (citing Hildreth ¶ 137). For this reason, Appellant contends “Hildreth does not expressly disclose, teach, or suggest providing a signal having data indicative of a speed of the sensed movement of the finger in each of three dimensions . . . .” Id. at 7. Appellant also asserts Hildreth’s processor that analyzes movements (e.g., changing position and/or orientation) of a finger “is of no consequence” because this teaching fails to disclose, teach, or suggest analyzing finger movement to determine a magnitude or speed of the finger movement. Id. at 6, 8 (both citing Hildreth ¶ 73). ISSUE Under § 103, has the Examiner erred in rejecting claim 12 by finding that Hinckley, Low, and Hildreth collectively would have taught or suggested Appeal 2020-004853 Application 12/361,072 5 each of the first and second touchless sensor subsystems being adapted to sense a movement of a corresponding one of first and second objects in each of three-dimensions . . . and to provide to the processing circuit a signal indicative of a determined direction, magnitude, and speed of the sensed movement of the corresponding one of the first and second objects [?] ANALYSIS Based on the record before us, we find no error in the Examiner’s rejection. We select independent claim 12 as representative. See 37 C.F.R. § 41.37(c)(1)(iv). At the outset, Appellant contends that the Examiner acknowledge[s] that Hinckley/Low does not disclose, teach, or suggest a computer input device that includes first and second touchless sensor subsystems that are each adapted to sense a movement of a corresponding one of first and second objects in each of three-dimensions relative to the housing occurring in spaced proximity to the housing and to provide to a processing circuit a signal indicative of a determined direction, magnitude, and speed of the sensed movement of the corresponding one of the first and second objects . . . .” Appeal Br. 4 (citing Final Act. 7). Regarding the above-italicized language, we disagree. The rejection indicates that Low includes two touchless sensor subsystems (e.g., element 38 in Figure 2) that are adapted to sense movement of an object relative to a housing (e.g., finger movement shown as arrow 35 in Figure 2) and provides to a processing circuit a signal indicative of a determined direction, magnitude, and speed of the sensed movement. Final Act. 5-6 (citing Low ¶¶ 22, 24, 26, 31-32, 34, Fig. 2); see also Ans. 14-16 (reproducing Low ¶¶ 25-26, 30-32, Fig. 2). The rejection Appeal 2020-004853 Application 12/361,072 6 further proposes to modify Hinckley’s input device (e.g., a mouse/housing with touchless sensors shown in Figs. 4C and 9A-C) with Low’s “directional sensors . . . to translate finger motion into movements on” Hinckley’s display. See Final Act. 6 (citing Low ¶ 7); see also id. at 3-4 (citing Hinckley 5:38-55, 7:54-8:5, 8:62-9:3, Figs. 2 (element 120), 4C (element 200), 9 (elements 692, 696)); Ans. 11-14 (reproducing Hinckley 5:38-55, 7:55-8:21, 8:62-9:3, 15:18-27, Figs. 4C, 9A-C). Like Hinckley, Low teaches a housing (e.g., 24) for a mouse having a processing circuit and one or more movement sensitive areas/sensors (e.g., 28, 38) that implement actions (e.g., movement or commands) “by moving their finger over or on the region of the housing 24.” Low ¶ 24, Figs. 1-2; see id. ¶¶ 22, 26, 31-32, Figs. 1-2 (moving input shown as arrow 35), 4. Specifically, Low teaches when an object (e.g., finger 34) moves across a surface (e.g., 32), multiple position signals are generated by optical sensors (e.g., 38) and are “used to determine the direction, position, speed and acceleration of an object as it[’]s moved around the active surface 32” (e.g., senses finger movement). Low ¶ 32 (emphasis added); see id. ¶ 25; see also Ans. 16 (emphasizing the above-quoted language). Low additionally states in one embodiment that the sensors “measure[] the intensity of light as its reflected off the finger 34” (id. ¶ 32) and teaches at least one type of image acquisition sensor (e.g., Optical Mouse Sensor HDNS-2000) that can “determin[e] the direction and magnitude of movement”4 (id. ¶ 45 (emphasis 4 The HDNS-2000 sensor measures changes in position by acquiring images “for 1500 times per second and mathematically determining the direction and magnitude of movement” as well as determines “the direction and speed of movement.” Agilent HDNS-2000 Optical Mouse Sensor - Product Brief, p. 1. The Specification states that the “touchless sensor subsystems Appeal 2020-004853 Application 12/361,072 7 added)). As such, each of Low’s touchless sensor subsystems is adapted to sense movement of one of first and second objects (e.g., fingers) in at least one dimension5 relative to the housing and to provide a signal indicative of a determined direction, magnitude, and speed of the sensed movement of the objects (fingers) relative to the housing. Notably, claim 12 recites “sensor subsystems . . . being adapted to sense a movement of” an object “in each of three-dimensions relative to the housing” and “to provide . . . a signal indicative of a determined direction, magnitude, and speed of the sensed movement of the corresponding one of the first and second objects relative to the housing . . . .” Appeal Br. 9 (Claims App.) (emphasis added). Claim 12 broadly recites sensing object movement and providing a signal that indicates the direction, magnitude, and speed of the object’s sensed movement, but does not require that the sensors measure the direction, magnitude, and speed of the object’s sensed movement. As such, neither Hildreth nor Low needs to sense a magnitude or speed of a finger’s movement to teach claim 12’s recitations, as Appellant 114L/114R[,] which are to be used to sense movements of [a] surface, e.g., a user’s hand of fingers” (Spec. 4:19-20) includes “optical sensor packages, e.g., an Agilent ADNS-2030 sensor package” (id. at 4:22-23). The ADNS- 2030 sensor similarly “measures changes in position by optically acquiring sequential surface images (frames) and mathematically determining the direction and magnitude of movement.” ADNS-2030 Low Power Optical Mouse Sensor - Data Sheet, p. 1. 5 The HDNS-2000 sensor is described as a “[c]omplete compact 2D sensor,” suggesting that the sensor measures movement in two dimensions. Agilent HDNS-2000 Optical Mouse Sensor - Product Brief, p. 1. The ADNS-2030 sensor (see Spec. 4:22-23) is also described as a “[c]omplete 2D motion sensor.” ADNS-2030 Low Power Optical Mouse Sensor - Data Sheet, p. 1. Appeal 2020-004853 Application 12/361,072 8 argues. See Appeal Br. 5 (asserting Hildreth does not sense a magnitude of a finger’s sensed movement), 6 (asserting Hildreth does not sense a speed of a finger’s sensed movement). Also, regarding the “sensor subsystems . . . being adapted to sense a movement of” objects “in each of three-dimensions” in claim 12, we stated in the decision, mailed June 26, 2019 (“June 2019 Decision”), that: a sensed tapping movement detects movement in one direction or dimension (e.g., Z direction). See Low ¶ 23. Also, Low teaches monitoring a finger moving in the direction of arrow 35 or another direction or dimension. Id. ¶ 31, Figs. 1-2. Low further discusses sensors 38 can “detect the position of the finger 34 as [it’s] moved over the active surface 32” (id.), including “the positional data (e.g., X and Y)” (id. ¶ 33), and signals “may be used to determine the direction [and] position . . . of the object as [it’s] moved around the active surface 32” (id. ¶ 32). . . . Low’s Figures 3A through 5 also show sensors that detect or monitor “direction of movement” at best in two- dimensions, but not “three-dimensional movement of” an object relative to the housing, as claim 12 requires. June 2019 Decision, 5-6. Since this decision, claim 12 has been amended from sensor subsystems that are “adapted to monitor a three-dimensional movement of a corresponding one of first and second object relative to the housing” (see June 2019 Decision, 2) (emphasis added) to sensor subsystems that are “adapted to sense a movement of a corresponding one of first and second object in each of three-dimensions relative to the housing . . .” (Appeal Br. 9 (Claims App.) (emphasis added)). That is, claim 12 no longer requires monitoring 3-D movement (e.g., X, Y, and Z movement), but rather to sense movement in each of three dimensions (e.g., X, Y, or Z movement). Thus, Appeal 2020-004853 Application 12/361,072 9 as explained above, Low at least suggests sensing movement in each of three dimensions (e.g., X, Y, or Z). See Low ¶¶ 23 (discussing positional data related to movement on the display screen and tapping or Z directional movement), 33 (discussing sensing X and Y positional data). Regardless, the rejection further relies on Hildreth to teach known sensors for sensing an object’s movement in each of three-dimensions. Final Act. 6-7 (citing Hildreth ¶¶ 46, 69, 73, 105, 115, 129, 137, Fig. 1); see also Ans. 8 (same), 17-20 (reproducing Hildreth ¶¶ 47-48, 69, 73, 105, 129, 137, Fig. 1). Hildreth teaches its processor may determine a position and orientation of finger in “three dimensions.” Hildreth ¶ 46; see id. ¶ 69. Hildreth further discusses a velocity can be “calculated as the difference in position of a fingertip position with an image region (or a three-dimensional image region) . . . .” Id. ¶ 137; see Ans. 20 (noting Hildreth measures “the difference in position of a fingertip (magnitude of the fingertip[’]s movement)”). Hildreth also discusses translating or zooming a view point based on the fingertip position. Hildreth ¶ 137. As such, Hildreth’s teachings, when combined with the Hinckley/Low touchless sensor subsystems, would have predictably yielded no more than two touchless sensor subsystems “being adapted to sense a movement of a corresponding one of first and second objects in each of three-dimensions relative to the housing” and “to provide to the processing circuit a signal indicative of a determined direction, magnitude, and speed of the sensed movement of the corresponding one of the first and second objects relative to the housing,” as claim 12 recites. Regarding Appellant’s contention that Hildreth only measures a finger’s width to detect movement in the Z direction and thus does not teach Appeal 2020-004853 Application 12/361,072 10 or suggest providing a signal indicative of a magnitude of the finger’s sensed movement in each of three dimensions (see Appeal Br. 5-6; see also Reply Br. 4-5), we explained above that claim 12 does not require sensing the magnitude of the finger’s movement but rather only recites sensing a movement in each of three dimensions and providing a signal indicative of the magnitude of the sensed finger movement. Furthermore, Hildreth’s disputed paragraph 105 is just one way of estimating a 3-D position. More generally, Hildreth states position data “may estimate a distance of the finger from the camera based on the size of the finger or may process images captured from a stereo or time-of-flight camera, which include depth information.” Hildreth ¶ 69 (emphases added). Thus, Hildreth is not limited to using finger width measurements. Hildreth also teaches its processor “may compute a vector that represents a position and orientation of a detected finger in three- dimensional space” (Hildreth ¶ 69 (emphasis added)), further suggesting that it processes the sensed information (see id. ¶¶ 69, 73) and provides signal indicating not only a position but magnitude of the sensed movement in each of three dimensions. Hildreth thus teaches or at least suggests embodiments that provide “a signal indicative of a determined . . . magnitude . . . of the sensed movement” in each of three-dimensions as claim 12 recites. As to Hildreth’s disputed paragraph 137 (Appeal Br. 6-7), Low, as previously explained, teaches providing a signal indicative of a speed of finger’s sensed movement, such that Hildreth need not provide a teaching in this regard. Low ¶ 32; see id. ¶ 45. In any event, Hildreth supplements Low’s teachings. Hildreth teaches that a known technique for calculating a velocity based on the difference in a fingertip’s position relative to center Appeal 2020-004853 Application 12/361,072 11 position, a 3-D image region, or a border of a sub-region within the image region. Hildreth ¶ 137. Additionally, Hildreth discusses the position difference can be used to rotate horizontally and vertically (e.g., scrolling) the view point in a virtual environment. Id. We thus disagree with Appellant that Hildreth does not teach or at least suggest determining the change in a finger’s position over time. See Ans. 21-22; see also Hildreth ¶ 73 (stating “processor may analyze movement (e.g., changing position and/or orientation) of a detected finger”) (emphases added). Hildreth therefore teaches and suggests a processor that is part of a sensor subsystem that senses a finger’s movement based on changes in fingertip’s or finger’s position and provides a signal indicative of the speed of a finger’s sensed movement as claim 12 requires. In the Reply Brief, Appellant argues that Hildreth fails to disclose a time reference is being used, and thus it cannot teach or suggest “this claimed element.” Reply Br. 2. Claim 12 recites “first and second touchless sensor subsystems being adapted to sense a movement of a corresponding one of first and second objects in each of three-dimensions” and “to provide to the processing circuit a signal indicative of a determined . . . speed of the sensed movement of the corresponding one of the first and second objects relative to the housing.” Appeal Br. 9 (Claims App.). There is no recitation to a time reference. Even assuming, without deciding, that a time reference is implied in the “speed” recitation, identity of terminology between Hildreth and the claim language is not required to teach or suggest the limitations in claims. See In re Bond, 910 F.2d 831, 832 (Fed. Cir. 1990). As previously explained, both Low and Hildreth teach sensing a finger’s movement and providing a signal indicative of the speed of a finger’s movement. Appeal 2020-004853 Application 12/361,072 12 Appellant also argues that Hildreth calculates a velocity when the fingertip’s position does not change and is based only on a single finger position, not positions. Reply Br. 3-4 (citing Hildreth ¶ 137). Putting aside whether this argument is being raised for the first time in the Reply Brief and is untimely (see 37 C.F.R. § 41.41(b)(2)), we reiterate that claim 12 does not recite that the sensor subsystems are adapted to sense (a) a change in finger positions or (b) a velocity of a finger’s movement, but rather just “adapted to sense a movement of a corresponding one of first and second objects” (e.g., a finger) and “to provide to the processing circuit a signal indicative of a determined direction, magnitude, and speed of the sensed movement of the corresponding one of the first and second objects.” Appeal Br. 9 (Claims App.) (emphases added). Thus, regardless of how Hildreth senses movement, Hildreth teaches and suggests sensor subsystems that determine a speed of the sensed finger movement and are “adapted . . . to provide to the processing circuit a signal indicative of a determined . . . speed of the sensed movement of the corresponding one of the first and second objects” as claim 12 recites as previously explained. Lastly, to the extent Appellant contends Hildreth fails to disclose explicitly the features in dispute (see Appeal Br. 6, 8), the Examiner does not rely on inherency to supply missing claim limitations in connection with the obviousness rejection. See Final Act. 2-7. Rather, the rejection relies on what the cited references’ collective teachings would have suggested to ordinarily skilled artisans. Thus, Appellant’s inherency-based arguments are inapposite and, therefore, unavailing. See Merck & Co. v. Biocraft Laboratories, Inc,, 874 F.2d 804, 807 (Fed. Cir. 1989) (“[T]he question under 35 U.S.C. § 103 is not merely what the references expressly teach but Appeal 2020-004853 Application 12/361,072 13 what they would have suggested to one of ordinary skill in the art at the time the invention was made.”) (quoting In re Lamberti, 545 F.2d 747, 750 (CCPA 1976)) (internal quotation marks omitted) (emphasis added). For the foregoing reasons, Appellant has not persuaded us of error in the rejection of independent claim 12 and claims 13-15 and 17, which are not argued separately. THE REMAINING OBVIOUSNESS REJECTION Claim 16 is rejected under 35 U.S.C. § 103(a) as being unpatentable over Hinckley, Low, Hildreth, and Bohn (U.S. 2003/0006965, published Jan. 9, 2003). Final Act. 9-10. Claim 16 ultimately depends from claim 12 and is not separately argued. We therefore sustain this rejection for the reasons similar to those previously discussed. DECISION In summary: Claims Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 12-15, 17 103 Hinckley, Low, Hildreth 12-15, 17 16 103 Hinckley, Low, Hildreth, Bohn 16 Overall Outcome 12-17 No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv). AFFIRMED