Heald, Arthur D.Download PDFPatent Trials and Appeals BoardNov 2, 202013456184 - (D) (P.T.A.B. Nov. 2, 2020) Copy Citation 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. Appeal 2019-003917 Application 13/456,184 2 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. Appeal 2019-003917 Application 13/456,184 3 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. Appeal 2019-003917 Application 13/456,184 4 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. Appeal 2019-003917 Application 13/456,184 5 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, Appeal 2019-003917 Application 13/456,184 6 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 Appeal 2019-003917 Application 13/456,184 7 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 Appeal 2019-003917 Application 13/456,184 8 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 Appeal 2019-003917 Application 13/456,184 9 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. Appeal 2019-003917 Application 13/456,184 10 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 Copy with citationCopy as parenthetical citation