11440228 (P.T.A.B. Mar. 26, 2013)

Ex Parte Paul et al

Patent Trial and Appeal BoardMar 26, 2013

11440228 (P.T.A.B. Mar. 26, 2013)

UNITED STATES PATENT AND TRADEMARK OFFICE _____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD _____________ Ex parte GEORGE V. PAUL, GLENN J. BEACH, CHARLES J. COHEN, and CHARLES J. JOCOBUS _____________ Appeal 2011-002434 Application 11/440,228 Technology Center 2600 ______________ Before JEAN R. HOMERE, DAVID M. KOHUT, and BRYAN F. MOORE, Administrative Patent Judges. MOORE, Administrative Patent Judge. DECISION ON APPEAL Appeal 2011-002434 Application 11/440,228 2 This is a decision on appeal under 35 U.S.C. § 134(a) of the Final Rejection of claims 1-14 which represent all the pending claims. App. Br. 2. An oral hearing was conducted on March 13, 2013. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. INVENTION The invention is directed to a system for tracking a driver or passenger in a vehicle 10 and, in particular, to controlling operational devices or comfort features in the vehicle based on position, motion, and/or body or hand gestures. See Spec. 3:9-11. Claim 1 is exemplary of the invention and is reproduced below: 1. A method of controlling one or more vehicular-related devices, comprising the steps of: storing a file of recognized gestures; sensing the position or motion of a driver or passenger of a vehicle; comparing the sensed position or motion of the driver or passenger to the stored file of recognized gestures; and, if the sensed position or motion is identified as one of the stored, recognized gestures, controlling a device associated with the operation, safety or comfort of the vehicle in accordance with the sensed position or motion. REFERENCES Bouchard US 5,465,079 Nov. 7, 1995 Favot US 5,668,573 Sep. 16, 1997 Breed US 5,845,000 Dec. 1, 1998 Appeal 2011-002434 Application 11/440,228 3 REJECTIONS AT ISSUE Claims 1-6 and 8-13 stand rejected under 35 U.S.C. § 103(a) as unpatentable over the combination of Breed and Favot. Ans. 4-9. Claims 7 and 14 stand rejected under 35 U.S.C. § 103(a) as unpatentable over the combination of Breed, Favot, and Bouchard. Ans. 9- 10. ISSUES 1. Did the Examiner err in finding that Breed and Favot are properly combined to teach or suggest gesture recognition as recited in claim 1; and 2. Did the Examiner err in finding that the combination of Breed and Favot teaches or suggests “a tracking system for tracking the head, body, or other body parts,” as recited in claim 8; and 3. Did the Examiner err in finding that Bouchard discloses “the control of a device external to the vehicle,” as recited in claim 7? ANALYSIS 35 U.S.C. § 103(a) - Breed and Favot Claims 1-6 and 8-13 Claims 1-6 Appellants argue that Breed fails to teach or suggest gesture recognition. App. Br. 4. Specifically, Appellants argue that a gesture recognition system must recognize intentional human motion gestures. Id. This argument is not persuasive of Examiner error. The Examiner construes gesture to mean “a movement or position of the hand, arm, body, head or face that is expressive of an idea, opinion, Appeal 2011-002434 Application 11/440,228 4 emotion, etc.” Ans. 11 (citing Dictionary.com) (emphasis in original). We construe gesture in a similar way to mean “a movement of a part of the body as an expression of meaning, especially when speaking.” Chambers 21st Century Dictionary, © Chambers Harrap Publishers Limited (2001) (retrieved from http://www.xreferplus.com/entry/chambdict/gesture) (last visited March. 20, 2013). Appellants do not identify any description in the Specification that precludes our or the Examiner’s construction. Thus, we agree with the Examiner (Ans. 12) and do not find that the term “gesture” requires an intentional movement. Consistent with our definition of gesture, the Examiner finds that Breed teaches a system that recognizes when a driver is inebriated based on, among other things, whether the driver has become incapacitated or fallen asleep using a pattern recognition system that tracks the driver’s motions over time (i.e., recognizing movement of the body that expresses a meaning such as that the driver is incapacitated). Ans. 10-12 (citing Breed, 11:40-45.) We also note, the Examiner relies on the combination of Breed and Favot to teach the gesture related limitations of claim 1. Thus, even if Appellants do not agree with the above analysis regarding the definition of a “gesture,” the Examiner finds (Ans. 13-14) that Favot teaches storing recognized hand gestures and it is the combination of Favot with Breed that teaches the disputed limitation. Appellants further argue that, although Favot does disclose storing recognized hand gestures, Breed cannot be combined with Favot because “Breed is only concerned with relative head position, such that storing recognized gestures would be irrelevant and superfluous.” App. Br. 5; Reply Appeal 2011-002434 Application 11/440,228 5 Br. 2. We disagree. The Examiner finds that one of ordinary skill in the art at the time of the invention would recognize that Breed stores information regarding relative head position in order to recognize an abnormal head position. See Ans. 14. The Examiner finds that “[i]t should be clear that one of ordinary skill in the art would combine the recognition techniques of Favot and Breed to control operation of a vehicle.” Ans. 16. The Examiner's reasoning comports with KSR’s holding that the “combination of familiar elements according to known methods is likely to be obvious when it does no more than yield predictable results.” KSR Int'l Co. v. Tele/lex Inc., 550 U.S. 398, 416 (2007).We agree with the Examiner’s finding that one of ordinary skill at the time of the invention would have combined Favot’s method of storing recognized gestures including the head position information as taught by Breed. Id. Thus, Appellants argument is not persuasive of Examiner error. Claims 8-13 Claim 8 recites “a tracking system for tracking the head, body, or other body parts;” and “a gesture/behavior recognition system for recognizing and identifying the person's motions, the gesture/behavior recognition system including a memory storing a file of recognized gestures to be compared with the output of the tracking system.” Appellants argue that even if Breed monitors motions of a driver as the Examiner suggests, “the functionality of ‘monitoring the motion of a driver’ is not the same as a tracking system.” App. Br. 5. Appellants further argue that “the Examiner argues that the neural network of Breed is operative ‘to determine body motions that indicate behavior patterns to be recognized.’ However, nowhere Appeal 2011-002434 Application 11/440,228 6 in Breed is such a disclosure made.” Reply Br. 2. We are not persuaded by this argument. Appellants’ Specification does not define the phrase “tracking.” In the absence of a definition, the claims are to be interpreted as broadly as their terms reasonably allow. Tech Center, 367 F.3d at 1369. The Examiner construes tracking to mean “to observe or follow the course of progress of; keep track of” Ans. 11 (citing Dictionary.com) (emphasis in original). We construe gesture in a similar way to mean “the act or process of following someone or something.” Chambers 21st Century Dictionary, © Chambers Harrap Publishers Limited (2001) (retrieved from http://www.xreferplus.com/entry/chambdict/tracking) (last visited March. 20, 2013). Breed explicitly states "a microprocessor in control circuit 120 programmed to compare the motions of the driver over time and trained to recognize changes in behavior representative of becoming incapacitated.” Breed, 11:47-51; see also Ans. 15. Therefore, we find that Breed teaches following the drivers’ movements, i.e. tracking the driver. Appellants do not substantively argue the rejection of claims 2-6 and 9-13. Thus, for the reasons stated above, we affirm the Examiner’s decision to reject claims 1-6 and 8-13. 35 U.S.C. § 103(a) – Breed, Favot, and Bouchard Claims 7 and 4 Claim 7 Appeal 2011-002434 Application 11/440,228 7 Claim 7 adds to the limitations of claim 1 a recitation of “the control of a device external to the vehicle.” Appellants merely recite this claim limitation and assert that it is not found in Bouchard. App. Br. 6; Reply Br. 3. The Board’s rule, 37 C.F.R. § 41.37(c)(1)(vii), requires more substantive argument 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. See In re Lovin, 652 F.3d 1349, 1357 (Fed. Cir. 2011). Thus, Appellants argument is not persuasive of Examiner error. Appellants also argue that there is no motivation to combine Bouchard with Breed and Favot because Breed and Favot are “self-contained,” and by contrast “novelty of Bouchard is apparently to monitor multiple vehicles to enhance safety in view of increased traffic flow. App. Br. 6; Reply Br. 3. However, Bouchard teaches an alert system which allows information sensed in a car to be communicated to outside devices. Ans. 9-10. Thus, as suggested by the Examiner, one of ordinary skill in the art at the time of the invention would be motivated to combine Breed, Favot, and Bouchard to communicate information such as the fact that the driver is inebriated to someone outside of the vehicle. See Ans. 10. Accordingly, we find that the Examiner’s suggestion for modifying Breed and Favot with the system of Bouchard suffices as an articulated reason with some rational underpinning to justify the legal conclusion of obviousness. Appellants do not substantively argue the rejection of claim 14. Thus, for the reasons stated above, we affirm the Examiner’s decision to reject claims 7 and 14. Appeal 2011-002434 Application 11/440,228 8 DECISION The Examiner’s decision to reject claims 1-14 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 tj