11412252 (B.P.A.I. May. 17, 2012)

Ex Parte Cohen et al

Board of Patent Appeals and InterferencesMay 17, 2012

11412252 (B.P.A.I. May. 17, 2012)

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. 11/412,252 04/25/2006 Charles J. Cohen CYB-05903/03 7038 25006 7590 05/17/2012 GIFFORD, KRASS, SPRINKLE,ANDERSON & CITKOWSKI, P.C PO BOX 7021 TROY, MI 48007-7021 EXAMINER VU, THANH T ART UNIT PAPER NUMBER 2175 MAIL DATE DELIVERY MODE 05/17/2012 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 BOARD OF PATENT APPEALS AND INTERFERENCES ____________ Ex parte CHARLES J. COHEN, GLENN BEACH, BROOK CAVELL, GENE FOULK, CHARLES J. JACOBUS, JAY OBERMARK, and GEORGE PAUL ____________ Appeal 2010-009167 Application 11/412,252 Technology Center 2100 ____________ Before JOSEPH L. DIXON, HOWARD B. BLANKENSHIP, and ST. JOHN COURTENAY III, Administrative Patent Judges. BLANKENSHIP, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE This is an appeal under 35 U.S.C. § 134(a) from the Examiner’s final rejection of claims 8-17, which are all the claims remaining in the Appeal 2010-009167 Application 11/412,252 2 application. We have jurisdiction under 35 U.S.C. § 6(b). A transcript of the oral hearing held April 11, 2012 will mail in due course. We affirm. Invention Appellants’ invention relates to a system for recognizing human and creature gaits and behaviors, defined as combinations of “gestures.” Abstract. Representative Claim 8. A method of behavior recognition, comprising the steps of: storing information representative of a designated human behavior; sensing at least one subject to be analyzed; representing the body of the subject as a plurality of connected links; determining the dynamic motion of the body, if any, by monitoring the position of the links in space as a function of time; using the dynamic motion to derive kinematic link relationships at specific body locations; comparing the kinematic link relationships to the stored information; and, if a match is found, outputting the results of the comparison as the designated behavior. Appeal 2010-009167 Application 11/412,252 3 Examiner’s Rejections Claims 8, 10, and 11 stand rejected under 35 U.S.C. § 102(e) as being anticipated by Nguyen (US 6,072,494). Claims 9, 14, and 15 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Nguyen and Camhi (US 5,825,283). Claims 12, 13, 16, and 17 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Nguyen and Qiao (US 6,075,895). ANALYSIS Section 102(e) Rejection Appellants contend that Nguyen does not anticipate instant claim 8 because that system is based upon “coordinates,” not “links” as claimed.1 We do not find any specific definition of “links” in the Specification. Nor do Appellants allege that the term “links” has any special recognized meaning in the art. However, according to Appellants’ disclosure: An object is composed of many connected non- deformable links. For example, a person is made up of a torso (one link), a head (one link), two arms (each with two links), two hands (one link each, not counting the fingers), two legs (each with two links), and two feet (one link each). Spec. 3:10-13. 1 In the event of further prosecution of claims having the same or similar scope, the Examiner should ensure that the claims are drawn to patent eligible subject matter under 35 U.S.C. § 101. See CyberSource Corp. v. Retail Decisions, Inc., 654 F.3d 1366, 1372-73 (Fed. Cir. 2011) (claim is drawn to an abstract idea when the method steps can be performed in the human mind, or by using a pen and paper). Appeal 2010-009167 Application 11/412,252 4 An allegation that the Nguyen “coordinates” are not “links” is not responsive to the rejection that is before us. As made plain by the Examiner (e.g., Ans. at 6-7), the “links” in the reference are not merely the x-y coordinates. The “links” are the parts of a person that correspond to a plurality of x-y coordinates. We agree with the Examiner that the broadest reasonable interpretation of the term “links” in light of the Specification includes the representation of body parts described by the reference. Nguyen’s Figure 5b shows a frame data set that represents parts of a human body. [T]he frame data set shown in FIG. 5b contains x and y coordinate values of certain portions of a person performing a gesture. For example, these portions can include: a left extremity, a right extremity, a center of mass, width, top of head, and center of head. In this example, the left and right extremities can be the end of a person’s right and left arms and the width can be the person’s shoulder span. Nguyen col. 7, ll. 56-63. [I]nformation from the frame data set is extracted in various combinations and can also be scaled as needed by the system. For example, with an arm flapping gesture the system would extract width coordinates, coordinates of right and left extremities, and center of mass coordinates, and possibly others. Essentially, the frame data set indicates the location of significant parts of the moving subject at a given moment in time. . . . . . . . [T]he system will extract from the frame data set positional coordinates it needs in order to perform a proper comparison with each of the gestures known or recognizable to the system. Id. at col. 8, ll. 13-20, 56-59. Appeal 2010-009167 Application 11/412,252 5 Thus, to recognize an “arm flapping” gesture, Nguyen’s system requires at least information on the width (shoulder span), left and right extremities, and center of mass. Whether the shoulder span is represented by a single point, as suggested by Nguyen’s Figure 5b, or by at least two coordinates that define the “span,” the reference at least describes relating the shoulder to the ends of the arms and “represent[s] the body of the subject as a plurality of connected links,” consistent with the requirements of instant claim 8. Appellants are correct to the extent that Nguyen does not use the word “links” in describing the system. However, that observation fails to demonstrate error in the Examiner’s findings. Anticipation is not an “ipsissimis verbis” test. In re Bond, 910 F.2d 831, 832-33 (Fed. Cir. 1990) (citing Akzo N.V. v. U. S. Int’l Trade Comm’n, 808 F.2d 1471, 1479 n.11 (Fed. Cir. 1986)). “An anticipatory reference . . . need not duplicate word for word what is in the claims.” Standard Havens Prods., Inc., v. Gencor Indus., Inc., 953 F.2d 1360, 1369 (Fed. Cir. 1991). The rest of Appellants’ arguments in response to the § 102 rejection are also based on an unduly narrow meaning of the term “links.” We agree with the Examiner that Nguyen’s description of monitoring the motion of body parts and comparing the data to data arrays representing known gestures (e.g., col. 7, ll. 19-24) is sufficient to show anticipation of monitoring the position of the links in space as a function of time, deriving “kinematic” link relationships, and determining a match by comparing the kinematic link relationships to stored information as claimed. See Ans. 6-7. Appeal 2010-009167 Application 11/412,252 6 We therefore sustain the § 102(e) rejection of claim 8. Claims 10 and 11, not separately argued, fall with claim 8. See 37 C.F.R. § 41.37(c)(1)(vii). Section 103(a) Rejections In response to the § 103(a) rejections of claims 9 and 12-17, Appellants make the general argument that the rationale for combining the references is “overly general” and “off-point.” App. Br. 6-7. Appellants admit, however, that most gesture recognition systems “strive to recognize the gestures of ‘real-world targets.’” Id. In any event, instant claim 9 recites wherein the “designated behavior” of claim 8 “provides a generalized discrimination of suspicious or otherwise curious behaviors from normal activities.” Nguyen taken alone demonstrates the unpatentability of the subject matter of claim 9. The recognition of a human being flapping his/her arms provides a generalized discrimination of the curious behavior of a human being flapping his/her arms from normal activities. As such, at least in view of the scope of claim 9, we are not persuaded that the claim has been rejected in error. Instant claim 13 recites wherein the designated behavior of claim 8 “represents a collision.” Specification support for a designated behavior that “represents a collision” is not apparent. In any event, the designated behavior of a person jumping up and down (Nguyen Fig. 4) represents a collision with the supporting surface (e.g., a floor). At least in view of the breadth of claim 13, we are not persuaded that the claim has been rejected in error. Appeal 2010-009167 Application 11/412,252 7 Because no claim in particular has been argued, we have considered representative claims in our review of the § 103(a) rejections. See 37 C.F.R. § 41.37(c)(1)(vii). We sustain the rejections under 35 U.S.C. § 103(a).2 DECISION We affirm the Examiner’s decision to reject claims 8-17. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R. § 41.50(f). AFFIRMED peb 2 In the event of further prosecution of claims in the form of at least dependent claims 12 through 17, the Examiner should consider whether a recitation about what designated behavior “represents” (to the human mind) renders the claims indefinite under 35 U.S.C. § 112, second paragraph. See Datamize LLC v. Plumtree Software Inc., 417 F.3d 1342, 1356 (Fed. Cir. 2005) (to pass muster under § 112, claims must set forth objectively verifiable subject matter that is not dependent on a particular person’s subjective opinion). The Examiner should also consider whether the disclosure teaches one of ordinary skill in the art to make and use, without undue experimentation (i.e., enables), the subject matter of dependent claims 9 through 17. See Spec. 43:12-26 (listing uses that “are possible”).