Heald, Arthur D.

Patent Trials and Appeals Board

Nov 2, 2020

13456184 - (D) (P.T.A.B. Nov. 2, 2020)

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.
13/456,184 04/25/2012 Arthur D. Heald AQ-149141US 4811
135080 7590 11/02/2020
Proactive Patents, LLC (AMX)
900 West Bethany Drive
Suite 380
ALLEN, TX 75013
EXAMINER
COHEN, YARON
ART UNIT PAPER NUMBER
2626
NOTIFICATION DATE DELIVERY MODE
11/02/2020 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):
eofficeaction@appcoll.com
legal@proactivepatents.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte ARTHUR D. HEALD
Appeal 2019-003917
Application 13/456,184
Technology Center 2600
Before BRADLEY W. BAUMEISTER, MICHAEL J. STRAUSS, and
IRVIN E. BRANCH, Administrative Patent Judges.
BRANCH, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE1
Pursuant to 35 U.S.C. § 134(a), Appellant2 appeals from the
Examiner’s decision to reject claims 1–3, 5–10, 12–17, 19, and 20, which

1 We refer to the Specification, filed April 25, 2012 (“Spec.”); Final Office
Action, mailed September 14, 2018 (“Final Act.”); Appeal Brief, filed
November 9, 2018 (“Appeal Br.”); Examiner’s Answer, mailed February 26,
2019 (“Ans.”); and Reply Brief, filed April 23, 2019 (“Reply Br.”).

2 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 AMX. Appeal Br. 3.
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Application 13/456,184
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are all pending claims. Final Act. 1. We have jurisdiction under
35 U.S.C. § 6(b).
We AFFIRM.
CLAIMED SUBJECT MATTER
The claims are directed to “touchless user input commands being
identified and processed to perform tasks and related functions.” Spec. ¶ 2.
Claim 1, reproduced below with disputed limitation emphasized in italics, is
illustrative of the claimed subject matter:
1. A method of detecting an input gesture command
comprising:
receiving at least one digital image of an object from a
digital camera which is captured of a pre-defined controlled
movement area;
identifying, via a processor, a plurality of gridpoints
within the at least one digital image which correspond to a hand
and arm of a user in the at least one digital image, wherein the
identifying comprises identifying a center gridpoint of the object
representing a center of the hand, identifying a lower gridpoint
of the object representing the arm based on the identified location
of the center gridpoint, and identifying one or more upper
gridpoints of the object representing one or more appendages of
the hand based on the identified location of the center gridpoint;
generating a linear representation between the arm and
appendages of the hand, the linear representation including a
line between the lower gridpoint representing the arm and the
middle gridpoint representing the center of the hand, and one or
more respective lines between the middle gridpoint representing
the center of the hand and the one or more upper gridpoints
representing the one or more appendages of the hand;
determining a gesture command of the hand being made
by the user based on the generated linear representation between
the arm and the appendages of the hand with respect to a
previously stored baseline linear representation; and
designating, via the processor, the at least one digital
image as having the determined gesture command.
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Application 13/456,184
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REFERENCES
The prior art relied upon by the Examiner is:
Name Reference Date
Park US 2001/0008415 Al July 19, 2001
Chiang US 2010/0159981 Al June 24, 2010
Gokturk US 2011/0291926 Al Dec. 1, 2011
REJECTIONS
Claims 1, 3, 5, 6, 8, 10, 12, 13, 15, 17, 19, and 20 stand rejected under
35 U.S.C. § 103(a) as unpatentable over the combination of Chiang and
Gokturk. Final Act. 4–11.
Claims 2, 7, 9, 14, and 16 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over the combination of Chiang, Gokturk, and Park. Final
Act. 11–12.
ANALYSIS
We have reviewed the Examiner’s rejections in light of Appellant’s
arguments. We have considered in this Decision only those arguments
Appellant actually raised in the Briefs. Any other arguments Appellant
could have made but chose not to make in the Briefs are deemed to be
waived. See 37 C.F.R. § 41.37(c)(1)(iv).
To the extent consistent with our analysis herein, we adopt as our own
the findings and reasons set forth by the Examiner in (1) the action from
which this appeal is taken (Final Act. 4–12) and (2) the Examiner’s Answer
in response to Appellant’s Appeal Brief (Ans. 3–6) and concur with the
conclusions reached by the Examiner. We highlight the following for
emphasis.
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35 U.S.C. § 1033
Claim 1 recites:
generating a linear representation between the arm and
appendages of the hand, the linear representation including a line
between the lower gridpoint representing the arm and the middle
gridpoint representing the center of the hand, and one or more
respective lines between the middle gridpoint representing the
center of the hand and the one or more upper gridpoints
representing the one or more appendages of the hand.
Appeal Br. 24.
With respect to this limitation, the Examiner finds:
Fig 9A of Chiang illustrates a linear representation being
generated between gridpoints of the fingers. When including
gridpoints for the center of the hand and for the arm (as taught
by Gokturk), other linear representations would be generated as
well in order to calculate the distance between every pair of
points for gesture recognition purposes.)
Final Act. 7 (citing Chiang Fig. 9A, ¶ 54; Gokturk ¶ 37).
The Examiner concludes:
At the time of invention, it would have been obvious to a person
of ordinary skill in the art to combine the method of detecting
input gestures using gridpoints for representing the user’s fingers
- as taught by Chiang; with the gesture recognition system using
gridpoints for representing the user’s center of the hand, and the
arm - as taught by Gokturk. Such a combination involves adding
additional reference points used for calculations of
characteristics of the user’s hand/arm in order to yield
predictable results of increased reliability in locating the position

3 Because Appellant states “all of the rejected claims stand or fall together,”
we review the rejection of claim 1, and, except for our Decision summary,
do not address other pending claims.
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of the user’s hand/arm when attempting to recognize the user’s
possible input gesture.
Id.
Figure 9A of Chiang is reproduced below.

Figure 9A depicts images of an open hand and a closed hand with
corresponding gridpoints.
Chiang discloses:
As shown in FIG. 9A, a line segment between the two points
describes the width of the object. Thus, the system calculates the
width as the distance between the two points A and B. Of course,
although position and width are shown being calculated for a
hand, the same method can be used for any other object, such as
a head. Other representative dimensions may be calculated using
a similar method.
Chiang ¶ 54.
Gokturk discloses:
FIG. 1 illustrates a gesture recognition system 100 for using
depth perception to recognize the gesture created by a body part
of a person, under an embodiment. The body part that is
recognized by a system such as described in FIG. 1 may include,
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for example, a finger, a hand, an arm, a leg, a head, a shoulder or
a combination thereof.
Gokturk ¶ 37.
Appellant contends, “the combination of Chiang and Gokturk does not
create a gridpoint for a center of a hand, nor an arm of a hand, nor an
appendage of the hand,” so “it necessarily follows that Chiang and Gokturk
fail to generate a linear representation between the arm, the center of the
hand, and the appendages.” Appeal Br. 15. Appellant argues further that
“because Chiang and Gokturk do not create such linear representation, it
necessarily follows that Chiang and Gokturk fail to determine a hand gesture
command based on such linear representation.” Id.
More specifically regarding Chiang, Appellant argues that “Chiang
does not generate a center gridpoint of a hand, but rather describes a top
gridpoint of the hand” and “cannot determine which appendage(s) of the
hand are extended using the linear representation in FIG. 9A.” Id. at 17.
Appellant contends that “the linear representation in Chiang merely
determines whether a hand is an open fist or a closed fist which is a different
and less accurate analysis.” Id. Appellant argues that “Chiang only
describes generating a linear representation between a left side, a right side,
and a top side of a hand[,] which are used to create the triangles shown by
the dashed lines in FIG. 9A.” Id.
Appellant acknowledges that Gokturk discloses “an arm, a center of a
hand, and appendages.” Id. at 20 (“The only mention of an arm, a center of
a hand, and appendages is in Gokturk (paragraphs [0021], [0037], and
[0081])”). Appellant contends, however, that “Gokturk does not generate
linear representations between the arm, center of hand, and appendages,” but
rather “creates a histogram using depth information from an image [that] can
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be further processed to identify posture, movement of the hand.” Id.
Appellant asserts that “Chiang is not capable of using depth information to
perform 2D linear image analysis” and “Gokturk is not able to generate a
linear representation to determine how many fingers are open[,] but relies on
3D image analysis that involves histograms, posture, etc., based on depth of
an image acquired on a pixel-by-pixel basis.” Id.
Appellant’s arguments are unavailing. “Non-obviousness cannot be
established by attacking references individually where the rejection is based
upon the teachings of a combination of references.” In re Merck & Co., 800
F.2d 1091, 1097 (Fed. Cir. 1986). Here, Appellant fails to persuasively
rebut the Examiner’s findings and conclusion based on the combined
teachings of Chiang and Gokturk. Final Act. 6–7; Reply Br. 3–7.
We are, rather, persuaded by the Examiner’s finding that “[w]hat
Chiang does not teach are a middle gridpoint (center of the user’s hand) and
lower gridpoint (arm),” which is “the purpose of using the secondary
reference Gokturk.” Ans. 4; see Gokturk ¶ 81 (“the position of a hand may
be given by its center location”). Based on the combined teachings of the
references, we agree with the Examiner’s reasoning, “[i]t would have been
obvious to identify the combination of the user’s hand (fingertips per Chiang
and center per Gokturk) and arm (Gokturk), thereby providing more data as
to the type of gesture performed by the user.”
The Examiner persuasively explains, “[w]hen a combination of all
these points is used, then there would also be generated a linear
representation between each of these points, just as Chiang generates a linear
representation between the points of the fingertips of the user.” Id. We
agree with the Examiner’s conclusion, “[i]t would [have been] obvious to
combine the two references such that all these sets of points are used, in
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order to that much more reliably and precisely locate the position of the
user’s hand.” Id.
Appellant further argues that one of ordinary skill in the art would not
have been motivated “to modify Chiang (2D image analysis) to perform
posture recognition as described by Gokturk (3D image analysis) because
such modification would be very difficult if not impossible.” Appeal Br. 21.
Appellant argues, “the system of Gokturk is significantly more complicated
than the system of Chiang (and the system described by the present
application.).” Id. Based on the foregoing, Appellant concludes, “only
through impermissible hindsight [would] one skilled in the art . . . attempt to
combine a 2D image analysis process with a 3D image analysis process to
perform some sort of combined image processing.” Id.
We are not persuaded that the Examiner’s obviousness argument is
based on impermissible hindsight. Any judgment on obviousness is in a
sense necessarily a reconstruction based on hindsight reasoning, but so long
as it takes into account only knowledge which was within the level of
ordinary skill in the art at the time the claimed invention was made and does
not include knowledge gleaned only from applicant’s disclosure, such a
reconstruction is proper. In re McLaughlin, 443 F.2d 1392, 1395 (CCPA
1971). Appellant’s arguments (Appeal Br. 21) do not include sufficient
argument or evidence to persuade us that combining the teachings of Chiang
and Gokturk, as proposed by the Examiner (Final Act. 7), would have been
beyond the skill of the ordinarily skilled artisan or was based on knowledge
gleaned only from applicant’s disclosure.
Moreover, Appellant’s arguments appear to be based on a bodily
incorporation of the structures of the references, rather than a combination of
their teachings, as proposed by the Examiner. Appeal Br. 21 (“the system of
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Gokturk is significantly more complicated than the system of Chiang”).
“The test for obviousness is not whether the features of a secondary
reference may be bodily incorporated into the structure of the primary
reference. . . . Rather, the test is what the combined teachings of those
references would have suggested to those of ordinary skill in the art.” In re
Keller, 642 F.2d 413, 425 (CCPA 1981); see also In re Nievelt, 482 F.2d
965, 968 (CCPA 1973) (“Combining the teachings of references does not
involve an ability to combine their specific structures.”).
Here, the teachings in the references cited by the Examiner are
exemplary of the level of skill in the art at the time of Appellant’s invention.
Appellant does not explain why the difference in complexity between the
prior art references makes the combination of their teachings beyond the
capability of the ordinarily skilled artisan.
Appellant’s contention that the proposed modification would have
been beyond the capabilities of a person of ordinary skill in the art (Appeal
Br. 21) is not supported by sufficient argument or evidence to persuade us
that the assertion is true. We “take account of the inferences and creative
steps that a person of ordinary skill in the art would employ,” and find a
person of ordinary skill in the art would overcome those difficulties within
their level of skill. KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 418 (2007);
see also id. at 421 (“A person of ordinary skill is also a person of ordinary
creativity, not an automaton.”).
Thus, we are not persuaded that the rejection of claim 1 is based on
impermissible hindsight.
In view of the foregoing, we ae not persuaded the Examiner erred in
rejecting claim 1.
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DECISION SUMMARY
In summary:
Claims
Rejected
35 U.S.C. § Reference(s) Affirmed Reversed
1, 3, 5, 6, 8,
10, 12, 13,
15, 17, 19,
20
103 Chiang, Gokturk 1, 3, 5, 6,
8, 10, 12,
13, 15, 17,
19, 20

2, 7, 9, 14,
16
103 Chiang, Gokturk, Park 2, 7, 9, 14,
16

Overall
Outcome:
1–3, 5–10,
12–17, 19,
20

TIME PERIOD FOR RESPONSE
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 1.136(a)(1)(iv).
AFFIRMED