Ex Parte Keller et al

Patent Trial and Appeal Board

Oct 30, 2017

14190044 (P.T.A.B. Oct. 30, 2017)

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.
14/190,044 02/25/2014 Eric Jeffrey Keller 3021
115713 7590
Eric Jeffrey Keller
35 Merrymount Road
Unit 8
Quincy, MA 02169
EXAMINER
EDWARDS, CAROLYN R
ART UNIT PAPER NUMBER
2625
MAIL DATE DELIVERY MODE
10/30/2017 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 ERIC JEFFREY KELLER, VINH VI LAM, and
FRANK PETER LAMBRECHT
Appeal 2016-004703
Application 14/190,044
Technology Center 2600
Before JEAN R. HOMERE, MICHAEL J. STRAUSS, and
MICHAEL M. BARRY, Administrative Patent Judges.
HOMERE, Administrative Patent Judge.
DECISION ON APPEAL
Appellants appeal under 35 U.S.C. § 134(a) from a Final Rejection of
claims 1—30, which constitute all claims pending in this application.1 App.
Br. 4. We have jurisdiction under 35 U.S.C. § 6(b). We heard oral
arguments on October 24, 2017. A transcript of the hearing will be added to
the record in due course.
We reverse.
1 Appellants identify the real party in interest as Opdig, Inc. App. Br. 3.
Appeal 2016-004703
Application 14/190,044
Introduction
According to Appellants, the claimed subject matter relates to a
computing interface worn by a user to enter text or other commands to a
target computing device over a wireless connection. Spec. 1:17—3:13. In
particular, the interface includes a thumb ring (100) containing a first
accelerometer, and a first magnetometer. Fig. 3. The interface also includes
a wristband (200) including a second accelerometer, and a second
magnetometer. Id. Upon the user tapping his thumb on one of the twelve
finger segments in a particular hand, the gravitational and magnetic fields
experienced by the thumb and the wrist sensors are estimated to identity the
data communicated by the user. Spec. 35:1—40:28, Fig. 4.
Representative Claim
Independent claim 1 is representative, and reads as follows:
1. A system comprising:
a first accelerometer;
a first fastening article attached to the first accelerometer,
the first fastening article capable of holding the first
accelerometer in place on a portion of a thumb of a user;
a second accelerometer;
a second fastening article attached to the second
accelerometer, the second fastening article capable of holding
the second accelerometer in place on a portion of a wrist of a
user;
a first magnetometer attached to the first fastening
article; and
a second magnetometer attached to the second fastening
article.
2
Appeal 2016-004703
Application 14/190,044
Prior Art References
Seki US 2004/0012559 A1 Jan. 22,2004
Kusuda US 2008/0231602 A1 Sept. 25, 2008
Bress US 2012/0319940 A1 Dec. 20,2012
Rejections on Appeal
Claims 1, 8, 9, 12—24, and 26—30 are rejected on the ground of
nonstatutory obviousness double patenting as being unpatentable over
claims 1—6 and 11—16 ofU.S. Patent 8,743,052. Final Act. 6-40.2
Claims 1—12 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over the combination of Bress and Seki. Final Act. 41—47.
Claim 13, 16, 22, and 25 are rejected under 35 U.S.C. § 103(a) as
being unpatentable over the combination of Bress, Seki, and Kusuda. Final
Act. 48—56.
ANALYSIS
Appellants argue that the combination of Bress and Seki does not
teach or suggest a first fastening article having attached thereto an
accelerometer and a magnetometer, as recited in independent claim 1. App.
Br. 8—9. In particular, Appellants argue that Bress discloses an “Imagine
device” including a ring to be worn on a user’s thumb, wherein the ring
includes a 3-axis accelerator and a 3-axis gyroscope. Id. at 9 (citing Bress
117, Fig. 4, item 470). According to Appellants, Bress’s disclosure of
including the magnetic sensors in the ring is offered as an alternative
embodiment to that of using the 6 degree of freedom sensors (accelerometer,
magnetometer) in the ring. Id. at 9-10 (citing Bress 171, 173—75, Fig. 4,
2 Because Appellants filed a terminal disclaimer, which has been approved
by the Examiner, we agree with Appellants that the double patenting
rejection is considered moot. App. Br. 15.
3
Appeal 2016-004703
Application 14/190,044
item 470). Appellants submit the Examiner has not provided a rationale for
the proposed combination of the two alternative embodiments of Bress to
teach the disputed limitations. Id. at 10—11.
This argument is persuasive. We agree with Appellants that the cited
embodiments are indeed disclosed in Bress as being included alternatively in
the ring. In particular, Bress indicates that substituting the six degrees of
freedom sensors with the magnetic sensors in the ring may enable a user to
make more precise gestures with less effort than other methods, and may
result a cost savings. Bress 1175. Thus, although the Examiner correctly
finds that Bress discloses including the magnetic sensors in the ring, the
Examiner fails to appreciate that the latter embodiment is offered as an
alternative to the former, and that using the two alternative embodiments
together in the ring requires articulating a rationale therefor. Ans. 3—6.
Here, while the Examiner has articulated a rationale for combining Bress
with Seki to teach the limitations for the second fastening article, we agree
with Appellants that the Examiner’s failure to provide the requisite rationale
for combining the two alternative embodiments of Bress for the ring is
reversible error under the obviousness standard. Id. Because Appellants
have shown at least one reversible error in the Examiner’s rejection, we need
not reach the merits of Appellants’ remaining arguments. Accordingly, we
reverse the obviousness rejection of claim 1, as well as the obviousness
rejections of claims 2—30, which also suffer the deficiencies noted above.
4
Appeal 2016-004703
Application 14/190,044
DECISION
For the above reasons, we reverse the Examiner’s obviousness
rejection of claims 1—30.
REVERSED
5