Ex Parte Kwan

Board of Patent Appeals and Interferences

May 30, 2012

11455973 (B.P.A.I. May. 30, 2012)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________________

Ex parte DEREK KWAN
____________________

Appeal 2009-014221
Application 11/455,973
Technology Center 2100
____________________

Before ERIC S. FRAHM, KALYAN K. DESHPANDE, and
JASON V. MORGAN, Administrative Patent Judges.

DESHPANDE, Administrative Patent Judge.

DECISION ON APPEAL

Appeal 2009-014221
Application 11/455,973

2
STATEMENT OF CASE1
The Appellant seeks review under 35 U.S.C. § 134(a) of a final
rejection of claims 18-22, the only claims pending in the application on
appeal. We have jurisdiction over the appeal pursuant to 35 U.S.C. § 6(b).
We AFFIRM-IN-PART.

The Appellant invented position sensing system for controlling
selection of channels in a keyboard video mouse (KVM) switch having a
plurality of channels. Specification 1:22-24.
An understanding of the invention can be derived from a reading of
exemplary claims 18 and 19, which are reproduced below [bracketed matter
and some paragraphing added]:
18. A method for controlling the selection of channels in a
KVM switch having a plurality of channels according to a
position of a position movable component, the method
comprising:
[1] providing a plurality of devices in communication with
the KVM switch through one each of a plurality of KVM
switch channels;
[2] correlating one of a plurality of position definitions of the
position movable component with the KVM switch channel of
each of the plurality of devices as a function of an orientation of
the position movable component toward a physical location of
the correlated device;
[3] receiving a current sensor reading indicating a current
position of the position movable component, each position of
the position movable components being associated with one of
the plurality of channels;

1 Our decision will make reference to the Appellant’s Appeal Brief (“App.
Br.,” filed Jan. 12, 2009) and Reply Brief (“Reply Br.,” filed June 4, 2009),
and the Examiner’s Answer (“Ans.,” mailed Apr. 24, 2009), and Final
Rejection (“Final Rej.,” mailed Aug. 11, 2008).
Appeal 2009-014221
Application 11/455,973

3
[4] identifying one of the plurality of channels corresponding
to the current sensor reading based on one of a plurality of
position definitions, each of the plurality of position definitions
providing sensor readings corresponding to the positions
associated with one of the plurality of channels;
[5] generating a signal for selecting the identified correlated
channel at the KVM switch; and
[6] transmitting the signal to the KVM switch.

19. The method according to claim 18 further comprising:
[1] determining a number of active channels;
[2] determining if a position definition has been created for each of
the number of active channels; and
[3] determining if the sensor readings for the plurality of position
definitions are to be revised according to a change in a current sensor
reading of one of the position definitions, determining that a new
channel has been added, or if a position of the position movable
component is not detectable.

REFERENCES
The Examiner relies on the following prior art:
Kazama US 6,111,580 Aug. 29, 2000
Ying US 2003/0222801 A1 Dec. 4, 2003

REJECTION
Claims 18-22 stand rejected under 35 U.S.C. §103(a) as being
unpatentable over Ying and Kazama.

ISSUE
The issue of whether the Examiner erred in rejecting claims 18-22
under 35 U.S.C. § 103(a) as unpatentable over Ying and Kazama turns on
(1) whether Kazama teaches away from the claimed invention as recited in
Appeal 2009-014221
Application 11/455,973

4
claim 18 and (2) whether the combination of Ying and Kazama teaches or
suggests the limitations of claim 19.

ANALYSIS
The Appellant first contends that Kazama teaches away from
distinguishing between each of a plurality of different devices as a function
of physical location orientation correlation with a position moveable
component, as per claim 18. App. Br. 6-10 and Reply Br. 2-4. The
Appellant specifically argues that Kazama describes a gaze detection
component and a gesture recognition component and as such is not capable
of distinguishing between different devices within the scope of the first step
without the second, different gesture recognition component. App. Br. 6-7
and Reply Br. 2-3. Therefore, the Appellant concludes that Kazama teaches
away from distinguishing between devices through one-step physical
location orientation correlation with a position movable component. App.
Br. 7.
We disagree with the Appellant. The Examiner found that Ying
describes a KVM switch, multiple devices connected to the KVM switch,
and input/output components such as a keyboard, mouse, and monitor. Ans.
3-4 and Ying Fig. 4. The Examiner further found that Kazama describes a
position movable component and sensor, such as the described chair
embodiment, and therefore determines whether a user is present in front of a
device. Ans. 3-5 and 12-13. Kazama further describes that the angle of a
user’s gaze direction is used to determine the attention status of the user,
such that the attention degree decision is based on whether the point watched
Appeal 2009-014221
Application 11/455,973

5
on the display is within a predetermined radius of the center point of the
display. Kazama 4:58-67.
The Appellant’s first contention turns on whether Kazama’s sensing
system teaches away from being implemented on the plurality of devices
described by Ying. We find that it does not. While Kazama only describes
the use of a single device, Kazama does not preclude the use of multiple
devices. While the Appellant vehemently argues that Kazama only
describes one device (App. Br. 7), the Appellant fails to provide any
evidence or rationale that illustrates why Kazama precludes implementing
the sensing system on a plurality of devices. Absent any specific evidence
or rationale to the contrary, we do not find the Appellant’s argument
persuasive.
The Appellant further contends that the combination of Ying and
Kamaza fail to describe the limitations of claim 19. App. Br. 10-11 and
Reply Br. 4-5. The Appellant specifically contends that the Examiner has
failed to establish a prima facie case of obviousness because the Examiner
merely asserts that the “calibration” limitation of claim 19 would be obvious
to a person with ordinary skill in the art without providing any citation to
evidence to support this assertion. App. Br. 10. Here, we agree with the
Appellant. The Examiner found that the predetermined angle in order to
determine the gaze direction cannot exist without some type of calibration.
Ans. 15. However, the Examiner has failed to demonstrate why it would
have been obvious to a person with ordinary skill in the art to in
“determining if the sensor readings for the plurality of position definitions
are to be revised according to a change in a current sensor reading of the one
of the position definitions, determining that a new channel has been added,
Appeal 2009-014221
Application 11/455,973

6
or if a position of the position movable component is not detectable,” as
recited in claim 19. The Examiner has specifically not provided any
evidence or rationale that illustrates how this claimed limitation is merely a
“calibration” step and any evidence or rationale to illustrate how the
combination of the prior art teaches or suggests this limitation. As such, we
cannot sustain the rejection of claim 19.
Claim 20 incorporates this limitation from claim 19 and therefore we
do not sustain the rejection of claim 20 for the same reasons. Since this
issue is dispositive as to the rejection of claim 20, we need not reach the
remaining arguments presented by the Appellant in support of this claim.
The Appellant also contends that Kazama does not describe the
“current sensor reading” elements of claim 21. App. Br. 11-12 and Reply
Br. 5. We disagree with the Appellant. The Appellant merely asserts the
required limitations of claim 21 and alleges that the prior art fails to describe
these limitations. We do not consider such statements to amount to an
argument in support of claim 21. See 37 C.F.R. § 41.37(c)(1)(vii) (“A
statement which merely points out what a claim recites will not be
considered an argument for separate patentability of the claim.”); In re
Lovin, 652 F.3d 1349, 1357 (Fed. Cir. 2011) (“[W]e hold that the Board
reasonably interpreted Rule 41.37 to require more substantive arguments in
an appeal brief than a mere recitation of the claim elements and a naked
assertion that the corresponding elements were not found in the prior art.”).
As such, we sustain the Examiner’s rejection of claim 21.
The Appellant additionally contends that claim 22 is analogous to
claim 18 and the rejection of claim 22 should be reversed for the same
reasons as asserted in support of claim 18. We disagree with the Appellant.
Appeal 2009-014221
Application 11/455,973

7
The Appellant’s arguments in support of claim 18 were not found to be
persuasive and as such are not found to be persuasive here in support of
claim 22.

CONCLUSIONS OF LAW
The Examiner did not err in rejecting claims 18 and 21-22 under 35
U.S.C. § 103(a) as unpatentable over Ying and Kazama.
The Examiner erred in rejecting claims 19-20 under 35 U.S.C. § 103(a)
as unpatentable over Ying and Kazama.

DECISION
To summarize, our decision is as follows.
 The rejection of claims 18 and 21-22 under 35 U.S.C. § 103(a) as
unpatentable over Ying and Kazama is sustained.
 The rejection of claims 19-20 under 35 U.S.C. § 103(a) as
unpatentable over Ying and Kazama is not sustained.

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) (2010).

AFFIRMED-IN-PART

ke