Ex Parte Binder

Patent Trial and Appeal Board

Dec 27, 2016

12724896 (P.T.A.B. Dec. 27, 2016)

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.
12/724,896 03/16/2010 Yehuda Binder BINDER-006-US1 8202
131926 7590 12/27/2016
May Patents Ltd. c/o Dorit Shem-Tov
P.O.B 7230
Ramat-Gan, 5217102
ISRAEL
EXAMINER
BUKOWSKI, KENNETH
ART UNIT PAPER NUMBER
2621
MAIL DATE DELIVERY MODE
12/27/2016 PAPER
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.
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte YEHUDA BINDER
Appeal 2016-002457
Application 12/724,896
Technology Center 2600
Before JEFFREY S. SMITH, SHARON FENICK, and
MICHAEL J. ENGLE, Administrative Patent Judges.
FENICK, Administrative Patent Judge.
DECISION ON APPEAL
This is an appeal under 35 U.S.C. § 134(a) from the Examiner’s Final
Rejection of claims 54—59, 62—75, 77—81, 84, 87, and 90—177, all of the
claims pending in the case. Claims 1—53, 60, 61, 76, 82, 83, 85, 86, 88, 89,
and 178 have been cancelled. We have jurisdiction under 35 U.S.C.
§ 6(b)(1).
We affirm.
Appeal 2016-002457
Application 12/724,896
Invention
Appellant’s invention relates to using face detection and hand gesture
detection as a control signal for a device. (Spec. Abstract.)
Representative Claim
Claim 54, reproduced below with certain disputed limitations
emphasized, is representative:
54. A computer implemented method for controlling a device
based on a hand gesture detection, the device having a display
screen that has a center line of sight, said method comprising:
(a) attaching a camera having a center line of sight to the
device to maintain the center line of sight of the camera
substantially parallel to the center line of sight of the screen, so
that the images captured by the camera are substantially of a
scene facing the display screen;
(b) capturing an image by the camera;
(c) converting the image into a digital data form;
(d) detecting the hand gesture in the captured image by a
detecting algorithm; and
(e) blanking the display screen by stopping a supply of
power to at least the display screen in response to not detecting
the hand gesture in the captured image.
Rejections
The Examiner rejects claims 54—56, 58—59, 62, 63, 72—75, 77, 84, 87,
96-100, 102, 103, 112, and 113 under pre-AIA 35 U.S.C. § 103(a) as
unpatentable over Trovato (US 2006/0071135 Al; pub. Apr. 6, 2006) and Xu
(US 2007/0126884 Al; pub. June 7, 2007). (Final Action 12-16.)
The Examiner rejects claims 57, 64, 65, 78—81, 101, 104, and 105
under pre-AIA 35 U.S.C. § 103(a) as unpatentable over Trovato, Xu, and
Kitaura (US 2007/0132725 Al; pub. June 14, 2007). (Final Action 16—19.)
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The Examiner rejects claims 66—71, 90-95, and 106—111 under pre-
AIA 35 U.S.C. § 103(a) as unpatentable over Trovato, Xu, and Underkoffler
(US 7,598,942 B2; iss. Oct. 6, 2009). (Final Action 19-25.)
The Examiner rejects claims 114—117, 124—130, 137—145, 149, 159—
164, and 168 under pre-AIA 35 U.S.C. § 103(a) as unpatentable over
Trovato, Xu, and Admitted Prior Art (hereinafter “APA”) (Spec. ]Hf 111—
119, Fig. 7). (Final Action 25—28.)
The Examiner rejects claims 118, 131, 146—148, and 165—167 under
pre-AIA 35 U.S.C. § 103(a) as unpatentable over Trovato, Xu, APA, and
Cho (US 2006/0067367 Al; pub. Mar. 30, 2006). (Final Action 29-30.)
The Examiner rejects claims 119-123, 132—136, 150-158, and 169—
176 under pre-AIA 35 U.S.C. § 103(a) as unpatentable over Trovato, Xu,
APA, and Binder (US 2007/0173202 Al; pub. July 26, 2007). (Final Action
30-32.)
Issues
A: Did the Examiner err in finding that Trovato and Xu are
analogous art in the rejection of claim 54?
B: Did the Examiner err in combining Trovato and Xu in the
rejection of claim 54?
C: Did the Examiner err in finding the combination of Trovato and
Xu teaches or suggests “detecting the hand gesture in the captured image,”
as recited in claim 54?
D: Did the Examiner err in finding the combination of Trovato and
Xu teaches or suggests “blanking the display screen ... in response to not
detecting the hand gesture in the captured image,” as recited in claim 54?
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ANALYSIS
A: Analogousness of References
Appellant argues that Trovato and Xu are not analogous art. (Appeal
Br. 10-13; Reply Br. 6—9.) Appellant specifically argues that because
Trovato is directed to an industrial/commercial environment providing
medical services, “differs in kind from the device defined in the claims,” and
is classified differently, it is not analogous art to the present application.
(Appeal Br. 10-11.) Appellant additionally argues that Xu is directed to
control of a common television set and to the recognition of specific
personal faces, and therefore Xu is not analogous to Trovato. {Id. at 11—12.)
We consider two criteria in determining whether prior art is
analogous: (1) whether the art is from the same field of endeavor as the
invention, regardless of the problem addressed, and (2) if the reference is not
within the field of the inventor’s endeavor, whether the reference still is
reasonably pertinent to the particular problem with which the inventor is
involved. In re Bigio, 381 F.3d 1320, 1325 (Fed. Cir. 2004). The Supreme
Court directs us to construe the scope of analogous art broadly, stating that:
[FJamiliar items may have obvious uses beyond their
primary purposes, and in many cases a person of ordinary skill
will be able to fit the teachings of multiple patents together like
pieces of a puzzle” and that it is “error ... to foreclose [an
obviousness] reasoning by holding that courts and patent
examiners should look only to the problem the [applicant] was
trying to solve.
KSRInt’l Co. v. Teleflex Inc., 550 U.S. 398, 420 (2007).
Trovato concerns the repositioning of a device, such as a video
monitor, automatically in response to the detection of a user’s position by a
sensor such as a camera. (Trovato Abstract, 114.) Xu concerns the use of
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face detection/recognition from a user’s image in controlling television
display. (Xu Abstract.) Appellant’s invention relates to the use of the
detected image of a user’s face or hand gesture in order to control a device
such as a display screen or television set. (Spec. Abstract.)
The Examiner finds that these references are all in the same field of
endeavor as the invention, namely “user gesture detection through image
capture and analysis to provide a desired output, functionality or effect on
the display system.” (Answer 6.) Although Appellant argues that neither
Trovato nor Xu teach gesture detection and that Xu does not teach detection
of a viewer (Reply Br. 9), we agree with the Examiner’s conclusion and
disagree with the Appellant’s contention that the Examiner has drawn the
field definition too narrowly. (Id. at 8). Further, we find each of the
references reasonably pertinent to the particular problem with which the
inventor was involved. Here, the particular problem faced by the inventor
was allowing convenient or better control or visualization of a device, such
as a display, without using a remote control. (Spec. 1:21—26.)
With respect to the classification of the Trovato reference, although
“the diverse Patent Office classification of the references [are] some
evidence of ‘non-analogy’ ... we consider the similarities and differences in
structure and function of the inventions disclosed in the references to carry
far greater weight.” In re Ellis, 476 F.2d 1370, 1372 (CCPA 1973); see also
In re Mlot-Fijalkowski, 676 F.2d 666, 671 n.5 (CCPA 1982) (“[EJvidence
[regarding different classifications] is inherently weak . . . because
considerations in forming a classification system differ from those relating
to a person of ordinary skill seeking solution for a particular problem.”). We
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do not find the classification disparity to be convincing of error in the
Examiner’s finding of analogousness.
Thus, we are not convinced of error in the Examiner’s use of Trovato
and Xu as prior art.
B: Additional Arguments Regarding Trovato and Xu
While styled as arguments that Trovato and Xu are not “analogous” to
each other, Appellant argues that because Trovato and Xu describe self-
contained devices which independently operate effectively, one of ordinary
skill in the art would not combine elements of the Trovato and Xu
disclosures as the Examiner does in the rejection. (Appeal Br. 12—13.)
Appellant cites to Kinetic Concepts to argue that as Trovato and Xu
are self-contained devices which independently operate effectively, no
motivation exists to combine features from these references. (Appeal Br.
12—13, citing Kinetic Concepts, Inc. v. Smith & Nephew, Inc., 668 F.3d
1342, 1369 (Fed. Cir. 2012).) However, in Kinetic Concepts, the two
references independently and effectively accomplished the same aim
(draining fluids from a wound) and no party provided any explanation of
why one of ordinary skill in the art would have combined these references.
(.Kinetic Concepts, 668 F.3d at 1342.)
In this case, even if we found that each of Trovato and Xu
independently and effectively accomplish the same aim, we would consider
whether the Examiner’s stated reasons, to conserve power and add further
user control, would have provided the motivation to combine certain features
of the two references. The conservation of power from Xu is not addressed
in Trovato, and thus the references do not independently and effectively
accomplish the same aim. Additionally, we are not persuaded of error in the
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Examiner’s reasoning for the combination of Xu and Trovato. Therefore,
we find that the Examiner is correct in combining Trovato and Xu in the
rejection of claim 1.
C: “detecting the hand gesture in the captured image ”
Appellant argues that Trovato, in combination with Xu, does not teach
or suggest detection of a hand gesture in a captured image, as in claim 54.
Appellant argues that Trovato is silent regarding and does not enable any
detection of hands in general, and concerns detection of face/eye location
only (Appeal Br. 7—8). Additionally, Appellant presents arguments that
Trovato teaches away from the claimed invention, because the surgeon
contemplated as the operator of the device in Trovato would “need to have
his hands free for the medical treatment.” (Appeal Br. 10.)
We agree with the Examiner (Answer 6; Final Action 12) that it is
clear from Trovato that the detection of the surgeon’s hands is taught or
suggested as being captured by the camera and used to position a device in
Trovato. (Trovato 154.) Additionally, we agree with the Examiner that,
“Trovato’s disclosure is clear that the nonuse of hands is meant in the
physical sense (e.g., physically touching the display) in order to move the
display portion of the device.” (Answer 3.) Trovato specifically discloses
various situations in which a device is positioned with respect to the image
of a user. In addition to a display screen positioned with respect to a user’s
face, Trovato discloses the positioning of a camera with respect to the
surgeon’s hands or an instrument. (Trovato 1 54, cited in the rejection at
Final Action 12.) Thus, Trovato specifically discloses, and does not teach
away from, the use of an image of a user’s hands to control a device.
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Appellant additionally argues that Trovato at most teaches or suggests
only the position or location of a user’s hands, and “hand gesture” must be
interpreted to mean “movement of a state of a hand, typically for signaling.”
(Appeal Br. 7—8.) With respect to movement, however, in the Reply Brief,
Appellant argues that certain dependent claims “explicitly recite hand
gestures that are ‘static’ {no movement) and based on the hand posture or
configuration, such as extending fingers.” (Reply Br. 5, emphasis added.)
The Specification provides no definition for “hand gesture” but does
note that (as seen in certain dependent claims) examples of hand gestures
“may involve extending a single finger, multiple or all fingers” (Spec. 6:9,
7:9), “extracting only the index finger, thus ‘pointing’ to the ceiling of the
room” {id. at 32:12—13), or other configurations of finger positions (Spec.
32:9-26; Figs. 43-50).
The Examiner finds that, in the absence of a definition, the broadest
reasonable interpretation of “hand gesture” in light of the specification does
not narrow “hand gesture” to be outside the teachings of the Trovato
reference. Specifically, the Examiner finds that Trovato’s teachings
regarding the tracking of movement of a user’s hands would teach or suggest
the detection of hand gestures. (Answer 3—4, citing Trovato 154.)
Cumulative to the Examiner’s findings, we highlight that Trovato discusses
the tracking of eye gaze, blinks, and more subtle facial behaviors, in addition
to recognizing the presence of a face. (Trovato 148.)
We are not persuaded by Appellant’s arguments that the Examiner
erred in finding that the tracking of hand movements taught by Trovato’s
disclosure teaches or suggests “hand gestures” within the scope of the
broadest reasonable interpretation of the term in light of the Specification.
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D: “blanking the display screen ... in response to
not detecting the hand gesture in the captured image ”
Appellant argues that Xu only discloses face detection, and that
therefore the teachings of Xu cannot be used with the hand detection
teachings of Trovato, especially in light of “the restriction requirement in
this application . . . based on the examiner’s assertion that face detection is
patentably distinct from hand gesture detection.” (Appeal Br. 8, 12; Reply
Br. 6.) Additionally, Appellant argues that Trovato’s focus is to improve a
display for a user, and thus any inhibition or blanking of a display screen, as
claimed in claim 54, is not contemplated by Trovato. (Appeal Br. 9-10;
Reply Br. 6.)
Appellant’s arguments are addressed to the individual teachings of the
references, rather than the combination of the references. In re Keller, 642
F.2d 413, 426 (CCPA 1981) (“[0]ne cannot show nonobviousness by
attacking references individually where, as here, the rejections are based on
combinations of references.” (citations omitted)). Rather, the test is what
the combined teachings of the references would have suggested to those of
ordinary skill in the art. See Keller, 642 F.2d at 425. A skilled artisan is “a
person of ordinary creativity, not an automaton.” KSR, 550 U.S. at 420-21.
On this record, Appellant does not present sufficient evidence or persuasive
argument that the combination of the cited references was “uniquely
challenging or difficult for one of ordinary skill in the art” or “represented an
unobvious step over the prior art.” Leapfrog Enters., Inc. v. Fisher-Price,
Inc., 485 F.3d 1157, 1162 (Fed. Cir. 2007) (citing KSR, 550 U.S. at 418-19).
Additionally, with respect to Trovato, we agree with the Examiner
that Trovato contemplates a display moved to a neutral position when a user
is not detected (Final Action 2; Answer 4; Trovato 1 55), and thus the
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Appellant’s characterization of Trovato as only directed to system responses
to a user who is present is incorrect.
We also disagree with Appellant’s arguments regarding the prior art
based on the restriction requirement for election between species. We note
that a restriction requirement creates a rebuttable presumption during
examination that the indicated groups are distinct. MPEP § 803; see also
Applied Materials, Inc. v. Advanced Semiconductor Materials Am., Inc., 98
F.3d 1563, 1568 (Fed. Cir. 1996) (restriction requirement is for
“administrative convenience”); In re Watkinson, 900 F.2d 230, 233 (Fed.
Cir. 1990) (restriction is “a matter within the discretion of the examiner and
not tantamount to a rejection of claims”); In re Hengehold, 440 F.2d 1395,
1403 (CCPA 1971) (restriction is a “discretionary, procedural or
nonsubstantive” matter). Thus, it is a tool to focus initial examination on a
group of claims of the Appellant’s choosing. Any divisional application
filed directed to a specific group subject to a standing restriction requirement
is protected by 35 U.S.C. § 121 against the use of a patent issuing from
either the parent or the daughter against the other. Appellant cites no
support for the argument that the restriction requirement creates a legal
presumption of patentability as against the prior art. We find unavailing
Appellant’s arguments that the prior restriction requirement made the elected
claims patentable over the cited prior art.
Thus, we are not convinced of error regarding the teachings of the
combination of Trovato and Xu with respect to the “blanking the display
screen” limitation of claim 54.
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Conclusion
Therefore, we sustain the Examiner’s rejection of claim 54 under 35
U.S.C. § 103(a), and of independent claims 54, 74, 84, and 98, argued on the
same basis and of dependent claims 55—59, 62—73, 75, 77—81, 87, 90-97,
and 98—177, not separately argued. (Appeal Br. 6.)
DECISION
We affirm the Examiner’s decision rejecting claims 54—59, 62—75,
77—81, 84, 87, and 90-177 under 35 U.S.C. § 103(a) as unpatentable.
Pursuant to 37 C.F.R. § 1.136(a)(l)(iv), no time period for taking any
subsequent action in connection with this appeal may be extended.
AFFIRMED
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