Ex Parte Kim

Patent Trial and Appeal Board

Nov 25, 2014

13502481 (P.T.A.B. Nov. 25, 2014)

UNITED STATES PATENT AND TRADEMARKOFFICE
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.
13/502,481 04/17/2012 Seung Il Kim 2241.737BS 6941
86636 7590 11/25/2014
BRUNDIDGE & STANGER, P.C.
2318 MILL ROAD, SUITE 1020
ALEXANDRIA, VA 22314
EXAMINER
SHAH, PRIYANK J
ART UNIT PAPER NUMBER
2692
MAIL DATE DELIVERY MODE
11/25/2014 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 SEUNG II KIM
____________________

Appeal 2015-000216
Application 13/502,481
Technology Center 2600
____________________

Before ST. JOHN COURTENAY, III, THU A. DANG, and
LARRY J. HUME, Administrative Patent Judges.

DANG, Administrative Patent Judge.

DECISION ON APPEAL

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I. STATEMENT OF THE CASE
Appellant appeals under 35 U.S.C. § 134(a) from a Final rejection of
claims 1, 3–5, 7–16, 19, and 21–28. Claims 2, 6, 17, 18, and 20 have been
canceled. We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.
A. INVENTION
According to Appellant, the invention relates to providing an adaptive
user interface (Abstract).
B. ILLUSTRATIVE CLAIM
Claim 1 is exemplary:
1. A method comprising:
measuring, by an apparatus, facial features of a user
who is disposed within a predetermined distance of the
apparatus;
disabling a gesture recognition input function of the
apparatus; and
maintaining a touch input function of the apparatus.
C. REJECTIONS
The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
Fujimura US 2008/0152191 A1 Jun. 26, 2008
Hakala US 2011/0181510 A1 Jul. 28, 2011
Hayashi US 2011/0235807 A1 Sept. 29, 2011
Pihlaja US 2011/0316679 A1 Dec. 29, 2011
Kandziora US 2012/0081328 A1 Apr. 5, 2012
Kim US 2012/0229377 A1 Sept. 13, 2012

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Claims 1, 3, 7–11, 15, 16, 22, and 24–27 stand rejected under 35
U.S.C. § 103(a) as being unpatentable over Hakala, Hayashi, and Kandziora.
Claims 4 and 21 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Hakala, Hayashi, Kandziora, and Pihlaja.
Claims 5, 23, and 28 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Hakala, Hayashi, Kandziora, and Kim.
Claims 12–14, and 19 stand rejected under 35 U.S.C. § 103(a) as
being unpatentable over Hakala, Hayashi, Kandziora, and Fujimura.
II. ISSUE
The principal issue before us is whether the Examiner has erred in
finding that the combination of Hakala, Hayashi, and Kandziora teaches or
would have suggested “disabling a gesture recognition input function” of an
apparatus (Claim 1 (emphases added)).
III. FINDINGS OF FACT
The following Findings of Fact (FF) are shown by a preponderance of
the evidence.
Hakala
Hakala discloses a detector that determines a distance that
parameterizes a gesture, and accepts as valid only gestures that are within a
certain range on the apparatus (¶ 48).

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IV. ANALYSIS
Appellant contends, in Hakala, “with detector 12 always enabled or
functioning all gestures are detected” (App. Br. 12). According to
Appellant, “Claim 1 recites that that the gesture recognition input function is
disabled” but “Hakala does not teach or suggest that the detector . . . is ever
disabled” (id. (emphasis omitted)).
However, the Examiner points out that although Appellant contends
that Hakala’s detector is not disabled, “[t]he claims and the Instant
application specification merely mention the gesture recognition input
function as determined by the gesture recognition unit 320 of the apparatus
is disabled” and not the detector (Ans. 5 (emphasis added)). Thus, the
Examiner finds, contrary to Appellant’s contention, “Hakala . . . discloses
‘disabling a gesture recognition input function. . . .’” (id.).
We agree with the Examiner and find no error with the Examiner’s
underlying factual findings and ultimate legal conclusion of obviousness.
To determine whether the references disclose or would have
suggested the claimed invention, we give the claims their broadest
reasonable interpretation consistent with the Specification. See In re Morris,
127 F.3d 1048, 1054 (Fed. Cir. 1997).
At the outset, although Appellant argues, “Hakala does not teach or
suggest that the detector . . . is ever disabled” such argument is not
commensurate in scope with the recited language of claim 1 (App. Br. 12).
In particular, claim 1 does not recite any such disabling of a “detector.”
Instead, as the Examiner points out, “[t]he claims and the Instant application
specification merely mention the gesture recognition input function . . . is
disabled” and not the detector (Ans. 5(emphasis added)).
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Furthermore, claim 1 does not define a gesture “input function” other
than the gesture recognition input function is disabled. Thus, we give
“gesture recognition input function” its broadest reasonable interpretation as
any input of data relating to gesture recognition that is disabled. Thus, we
conclude claim 1 merely requires that the input of data relating to gesture
recognition is disabled or halted.
We also note that claim 1 merely requires that the gesture recognition
input function is disabled, but does not specify when the input function is
disabled, or how the disabling relates to the other recited steps in the claim.
Thus, giving the claim its broadest reasonable interpretation, the claim
merely requires that the input function is disabled at any time, including
when the device is powered off. That is, we note that the claim does not
preclude shutting down the entire device or putting the entire device into
sleep mode, as long as the gesture recognition input function therein is
disabled in the process.1
Nevertheless, Hakala discloses accepting as valid only gestures that
are within a certain range on the apparatus (FF). That is, Hakala only input
gesture data within a certain range. In view of our broad claim

1 Our reviewing court guides: “[A]lthough the specification often
describes very specific embodiments of the invention, we have repeatedly
warned against confining the claims to those embodiments. . . . [C]laims
may embrace ‘different subject matter than is illustrated in the specific
embodiments in the specification.’” Phillips v. AWH Corp., 415 F.3d 1303,
1323 (Fed. Cir. 2005) (en banc) (citations omitted). Because “applicants
may amend claims to narrow their scope, a broad construction during
prosecution creates no unfairness to the applicant or patentee.” In re ICON
Health and Fitness, Inc., 496 F.3d 1374, 1379 (Fed. Cir. 2007) (citation
omitted).

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interpretation, we find no error with the Examiner’s finding “Hakala . . .
discloses disabling ‘a gesture recognition input function’” (Ans. 5).
We also note that although Appellant contends Hakala does not
disclose the claimed invention (App. Br. 10–12), the rejection was made
under § 103 as being obvious over combination of the references. The test
for obviousness is not what each reference individually shows but what the
combined teachings would have suggested to one of ordinary skill in the art.
See In re Merck & Co., Inc., 800 F.2d 1091, 1097 (Fed. Cir. 1986).
Thus, even assuming, arguendo, our reviewing court were to interpret
“disabling a gesture recognition input function” as requiring the disabling of
the detector, since the rejection was made under § 103 as being obvious over
Hakala in view of Hayashi, and Kandziora, we find Hakala in combination
with the other teachings would at least have suggested to one of ordinary
skill in the art that a detector providing only valid gestures within a certain
range (FF) would comprise a disabling function to prevent the input of
invalid gestures. We conclude that it would have been well within the skill
of one skilled in the art to provide a disabling function to a detector to
prevent the detector from providing invalid gestures.
The Supreme Court has determined that the conclusion of obviousness
can be based on the interrelated teachings of multiple patents, the effects of
demands known to the design community or present in the marketplace, and
the background knowledge possessed by a person having ordinary skill in
the art. KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 418 (2007). The skilled
artisan is “a person of ordinary creativity, not an automaton.” Id. at 421.
We are not persuaded, and Appellant has presented no persuasive
evidence that providing the “disabling” of a detector which only accepts
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certain input was “uniquely challenging or difficult for one of ordinary skill
in the art.” Leapfrog Enters, Inc. v. Fisher-Price, Inc., 485 F.3d 1157, 1162
(Fed. Cir. 2007) (citing KSR, 550 U.S. at 418).
Accordingly, we agree with the Examiner’s finding the combination
of Hakala, Hayashi, and Kandziora teaches or would have suggested a
“disabling a gesture recognition input function” of an apparatus,” as required
by claim 1.
Accordingly, we find Appellant has not shown the Examiner erred in
rejecting claim 1 and claims 3 and 7–11 depending therefrom and falling
therewith (App. Br. 15) over Hakala, Hayashi, and Kandziora.
As for claim 15, which recites a “control unit configured to: compare
the measured distance with a pre-determine distance” and “control the
gesture recognition unit and the touch screen based at least in part on the
comparison,” Appellant contends Hakala does not teach or suggest such
limitations and “neither Hayashi nor Kandziro teach or suggest controlling
the detector described by Hakala” (App. Br. 18). Although Appellant
concedes “Hakala states that ‘there may be a valid range of distances for
valid gestures,” Appellant contends Hakala has no support for a “controller”
to determine “whether a gesture is valid within the valid range of distances”
(id.).
Hakala discloses accepting as valid only gestures that are within a
certain range on the apparatus (FF). As Appellant concedes, “Hakala states
that ‘there may be a valid range of distances for valid gestures” (App. Br.
18). That is, Hakala teaches or at the least suggests determining a whether a
measured distance is within a valid range (and thus, comparing a measured
distance with the pre-determined acceptable distances), and controlling the
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device to accept as valid only gestures that are within a certain range on the
apparatus (FF).
Accordingly, we agree with the Examiner’s finding the combination
of Hakala, Hayashi, and Kandziora teaches or would have suggested the
features of claim 15. Thus, we find Appellant has not shown the Examiner
erred in rejecting claim 15 and claims 16 and 22 depending therefrom and
falling therewith (App. Br. 18) over Hakala, Hayashi, and Kandziora.
As for independent claim 24, Appellant merely repeats the argument
set forth with respect to claim 1 that “Hakala does not teach or suggest that
the detector… is ever disabled” whereas “Claim 24 recites that the gesture
recognition input function is disabled” (App. Br. 20 (emphasis omitted)).
However, as set forth above, we find no error with the Examiner’s rejection
of the claims over Hakala in combination with Hayashi, and Kandziora.
Thus, we find Appellant also has not shown the Examiner erred in
rejecting claim 24 and claims 25–27 depending therefrom and falling
therewith (App. Br. 23) over Hakala, Hayashi, and Kandziora.
Appellant merely contends Pihlaja, Kim and Fujimura fail “to
compensate for the deficiencies of Hakala” (App. Br. 23, 24). However, as
set forth above, we find no error with the Examiner’s rejection of the claims
over Hakala in combination with Hayashi, and Kandziora. Accordingly, we
find Appellant also has not shown the Examiner erred in rejecting claims 4
and 21 over Hakala, Hayashi, and Kandziora in further view of Pihlaja; in
rejecting claims 5, 23, and 28 over Hakala, Hayashi, and Kandziora in
further view of Kim; and in rejecting claims 12–14 and 19 over Hakala,
Hayashi, and Kandziora in further view of Fujimura.
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CONCLUSION AND DECISION
The Examiner’s rejection of claims 1, 3–5, 7–16, 19, and 21–28 under
35 U.S.C. § 103(a) is affirmed.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv).

AFFIRMED

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