Ex Parte Katz et al

Patent Trials and Appeals Board

Feb 1, 2019

14345592 - (D) (P.T.A.B. Feb. 1, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
14/345,592 03/18/2014 Itay Katz
22852 7590 02/05/2019
FINNEGAN, HENDERSON, FARABOW, GARRETT & DUNNER
LLP
901 NEW YORK A VENUE, NW
WASHINGTON, DC 20001-4413
UNITED ST A TES OF AMERICA
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
l 1968.00ll-01000 1020
EXAMINER
CHOWDHURY, AFROZA Y
ART UNIT PAPER NUMBER
2628
NOTIFICATION DATE DELIVERY MODE
02/05/2019 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):
regional-desk@finnegan.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte IT A Y KATZ and AMNON SHENFELD
Appeal2018-006419
Application 14/345,592
Technology Center 2600
Before JOHNNY A. KUMAR, JASON J. CHUNG, and
NORMAN H. BEAMER, Administrative Patent Judges.
KUMAR, Administrative Patent Judge.
DECISION ON APPEAL 1
1 Appellants have filed related Appeals in copending applications-U.S.
Patent Application No. 15/096,674; U.S. Patent Application No. 15/060,533;
U.S. Patent Application No. 15/090,527; U.S. Patent Application No.
15/256,481; and U.S. Patent Application No. 15/144,209. Br. 3.
Appeal2018-006419
Application 14/345,592
STATEMENT OF CASE
Appellants2 appeal under 35 U.S.C. § 134(a) from a Final Rejection of
claims 57----65, 67, 69-78, 80 and 82-90. Claims 1-56, 66, 68, 79, and 81
have been cancelled. Br. 26, 28, and 32. We have jurisdiction under
35 U.S.C. § 6(b).
We affirm.
Illustrative Claim
Illustrative claim 57 under appeal reads as follows:
57. An augmented reality device, comprising: at least one processor
configured to:
receive, from an image sensor, image information associated
with a real world scene;
detect, in the received image information, a predefined gesture
performed by a user;
correlate the detected predefined gesture with the image
information associated with the real world scene to detect at least one
real world object in the received image information pointed to by the
user;
determine visual data associated with the detected real world
object, the determined visual data including an activatable icon; and
output, to a display, the determined visual data including the
activatable icon
associated with the detected at least one real world
object.
2 Appellants identify eyeSight Mobile Technologies Ltd., as the real party in
interest (Br. 2).
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Application 14/345,592
Rejections on Appeal
Claims 57----65, 67, 69, 72-78, 80, 82, and 85-90 are rejected under
pre-AIA 35 U.S.C. I03(a) as being unpatentable over Ota (US
2013/0050069 Al; Feb. 28, 2013) in view of Shams et al. (US
2011/0221669 Al; Sept. 15, 2011).
Claims 70 and 83 are rejected under pre-AIA 35 U.S.C. I03(a) as
being unpatentable over Ota in view of Shams et al., and in further view of
Matsui et al. (US 2002/0060648 Al; May 23, 2002).
Claims and 84 are rejected under pre-AIA U.S.C. I03(a) as being
unpatentable over Ota in view ofMukawa (US 2012/0032874 Al; Feb. 9,
2012).
Appellants ' Contentions
1. Appellants contend that the Examiner erred in rejecting claims 57,
74, and 86 under 35 U.S.C. § 103 because:
A. Ota fails to disclose "determin[ing] visual data associated with the
detected real world object" and "including an activatable icon"
a. Ota fails to disclose "detected real world object"
b. The 3D virtual dashbard of Ota is not associated with "a
[ detected] real world object"
c. The virtual knob/button/slider of Ota is not "associated with
the detected real world object"
d. The Examiner's positions are contradictory
B. Shams fails to teach or suggest "determin[ing] visual data
associated with the detected real world object ... [and] including an
activatable icon"
a. Shams fails to disclose an "activatable icon"
b. The virtual keyboard or buttons of Shams are not "associated
with the detected real world object"
Br. 12- 21. ( emphasis omitted).
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Application 14/345,592
2. Appellants contend that the Examiner erred in rejecting claims 70
and 83 under 35 U.S.C. § 103 because "Matsui fails to cure the deficiencies
of Ota and Shams discussed above with respect to independent claims 57
and 74." Br. 22.
3. Appellants contend that the Examiner erred in rejecting claims 71
and 84 under 35 U.S.C. § 103 because:
Ota, Shams, and Mukawa, alone or in combination, fail to disclose the
combination of dependent claims 71 and 84, including, for example:
stop display of the visual data based on a head motion of the
user; and
resume display of the visual data when the head motion is
below a predefined motion speed.
Br. 22-25.
Issue on Appeal
Did the Examiner err in rejecting claims 57----65, 67, 69-78, 80 and 82-
90 as being obvious?
ANALYSIS
We have reviewed the Examiner's rejections in light of Appellants'
arguments that the Examiner has erred. We disagree with Appellants'
conclusions. Except as noted herein, we adopt as our own; ( 1) the findings
and reasons set forth by the Examiner in the action from which the appeal is
taken (Final Act. 4--50), and (2) the reasons set forth by the Examiner in the
Examiner's Answer (Ans. 2-12) in response to the Appellants' Appeal
Brief. We concur with the conclusions reached by the Examiner. We
highlight the following.
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Application 14/345,592
As to Appellants' above contention 1, they are unpersuasive because
they are not directed to the Examiner's specific determination. See Final
Act. 4--9. Instead, Appellants attack references individually for lacking a
teaching for which the Examiner relied on a combination of references to
show. It is well established that one cannot show nonobviousness by
attacking references individually where the rejections are based on
combinations of references. See In re Keller, 642 F.2d 413,426 (CCPA
1981); In re Merck & Co., Inc., 800 F.2d 1091, 1097 (Fed. Cir. 1986). The
effect of Appellants' argument is to raise and then knock down a straw man
rejection of claim 57 that was never made by the Examiner, in that the
Examiner did not rely solely on the one reference as argued. In other words,
Appellants argue against Examiner's findings that were never made. This
form of argument is inherently unpersuasive to show Examiner error. Our
reviewing court requires that references must be read, not in isolation, but
for what they fairly teach in combination with the prior art as a whole.
Merck, 800 F .2d at 1097.
The Examiner finds, and we agree,
Note: Ota describes in[0061] superimposition of user's hand over real
world content. The received image information from camera 124-125
includes user's hand and other real world content. Therefore,
predefined hand gesture can be detected by camera 124-125 and
displayed visual data would be altered such as, movement of a virtual
knob or a virtual slider, based on the correlation of user's hand and
image of real world content (object)); 'virtual knob/ button/ slider' is
interpreted as 'actvatable icon' since it activates a function);.
Shams teaches correlate[ing] the detected predefined gesture with
the image information associated with the real world scene to detect at
least one real world object in the received image information pointed
to the user (Figs. 6, 7, 15C-15D, [0258]:
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Application 14/345,592
Ans. 7-8 ( emphasis omitted). See also Ota ,r [0034]. 3
Regarding Appellants' contention 2, as discussed above, we find no
such deficiencies in Ota and Shams to remedy.
As to Appellants' contention 3 regarding claims 71 and 84 (Br. 22-
25), the Examiner has rebutted each of those arguments supported by
sufficient evidence. (Ans. 10-12). Therefore, we adopt the Examiner's
findings and underlying reasoning, which are incorporated herein by
reference. We see no error in these unrebutted findings.
Accordingly, we sustain the Examiner's§ 103 rejection of claims
claims 57, 70, 71, 74, 83, 84, and 86, as well as the remaining claims not
separately argued.
We observe no Reply Brief is of record to rebut the Examiner's
findings and responses to Appellants' arguments about the disputed features.
Therefore, in the absence of persuasive rebuttal evidence or argument to
persuade us otherwise, we adopt the Examiner's findings and underlying
reasoning, which are incorporated herein by reference. Consequently, we
sustain the rejection of claims 57-65, 67, 69-78, 80 and 82-90.
DECISION
We affirm the Examiner's rejections of claims 57-65, 67, 69-78, 80
and 82-90 as being unpatentable under 35 U.S.C. § 103(a).
3 i-f[0034] of Ota discloses "The one or more cameras 124-125 and/or one or
more other cameras can further provide images that can be used in
displaying one or more of the user's hands 130, such as superimposed,
relative to the identified X, Y and Z coordinates of the virtual environment
110 and/or other aspects of the real world." (emphasis added).
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Application 14/345,592
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(l )(iv).
AFFIRMED
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