Ex Parte Rosener

Patent Trial and Appeal Board

Jul 25, 2016

12326039 (P.T.A.B. Jul. 25, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
12/326,039 12/01/2008
32681 7590 07/27/2016
PLANTRONICS, INC
IP Department/Legal
345 ENCINAL STREET
P.O. BOX635
SANTA CRUZ, CA 95060-0635
FIRST NAMED INVENTOR
Douglas K. Rosener
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.
01-7503/US 2683
EXAMINER
LIU,LI
ART UNIT PAPER NUMBER
2636
NOTIFICATION DATE DELIVERY MODE
07/27/2016 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):
patents@plantronics.com
francois .devilliers@plantronics.com
neely.frazier@plantronics.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte DOUGLAS K. ROSENER
Appeal2014-003502
Application 12/326,039
Technology Center 2600
Before DANIEL N. FISHMAN, JOHN F. HORVATH, and
KEVIN C. TROCK, Administrative Patent Judges.
HORVATH, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellant seeks our review under 35 U.S.C. § 134(a) from the
Examiner's rejection of claims 1, 2, 4--7, 19, and 20. App. Br. 1. Claims 1-
7, 19, and 20 are pending in the Application. Final Act. 1. A rejection of
claim 3 is withdrawn and, thus, claim 3 is allowable (if appropriately re-
written). Ans. 13. We have jurisdiction over the appealed claims under 35
U.S.C. § 6(b).
We AFFIRM.
Appeal2014-003502
Application 12/326,039
SUMMARY OF THE INVENTION
The invention is directed to infrared power control supporting multi-
use functionality. Abstract.
Claim 1, reproduced below, is illustrative of the claimed subject
matter:
1. An infrared (IR) device comprising:
an IR light source to output an IR signal;
a power control means for controlling an IR signal power
level of the IR signal;
a processor;
a computer readable memory storing a first user
selectable application configured to enable the IR device to
perform a first function and a second user selectable application
configured to enable the IR device to perform a second
function, wherein the IR signal power level is adjusted
responsive to a user selection of the first user selectable
application or the second user selectable application.
REFERENCES
Menadier et al.
Abe et al.
Batey
us 5,027,433
us 5,323,257
us 6,104,512
us 6,369,693
us 7,120,363
June 25, 1991
June 21, 1994
Aug. 15, 2000
Apr. 9, 2002
Oct. 10, 2006
Gibson
Euw
REJECTIONS
Claims 1 and 4 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Gibson and Batey. Final Act. 6.
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Application 12/326,039
Claim 2 stands rejected under 35 U.S.C. § 103(a) as unpatentable over
Gibson, Batey, and Euw. Final Act. 9. 1
Claims 5-7 stand rejected under 35 U.S.C. § 103(a) as unpatentable
over Gibson, Batey, Abe, and Menadier. Final Act. 11.
Claims 19 and 20 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Gibson and Euw. Final Act. 13.
Claims 2, 19, and 20 stand rejected under 35 U.S.C. § 112, i-f 1 (pre-
AIA), for failing to comply with the written description requirement. Final
Act. 3.
ISSUES AND ANALYSIS
Claims 1and4-7
The Examiner rejects claims 1 and 4 under 35 U.S.C. § 103(a) as
unpatentable over Gibson and Batey. Final Act. 6-9. The Examiner rejects
claims 5-7 under 35 U.S.C. § 103(a) as unpatentable over Gibson, Batey,
Abe, and ivienadier. Id. at 11-13. Appellant does not present arguments for
the patentability of claims 1 and 4--7. See App. Br. 4--13. Accordingly, we
summarily affirm the Examiner's rejections of these claims.
Claims 2, 19, and 20
Claim 2 depends from and contains all the limitations of claim 1.
Regarding claim 1, Gibson discloses a remote controller 12 (having IR
transmitter 50 and IR receiver 56) that communicates with a TV 10 (having
IR transmitter 54 and IR receiver 52). Gibson 3 :57---64; Fig. 2. Gibson
further discloses remote controller 12 transmits to TV 10 either insecure data
at a normal power level or secure data at a lower power level. Id. at 4:5-25;
1 The Examiner withdraws the rejection of claim 3 under 35 U.S.C. § 103(a)
as unpatentable over Gibson, Batey, and Euw. See Ans. 13.
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Application 12/326,039
Fig. 3. Gibson further discloses determining whether TV 10 has responded
to remote controller 12, and if not, resending the data after moving remote
controller 12 closer to TV 10. Id. at 4:26-32.
The Examiner finds, and we agree, that Gibson discloses all the
elements of claim 1, including a microprocessor 20 that performs a selected
one of two application functions by transmitting either secure or insecure
data, and a means for controlling the IR power level responsive to user
selection of an application function. See Final Act. 6-8. The Examiner also
finds, and we agree, that it would have been obvious for microprocessor 20
to store the instructions for these different application functions and their
respective IR power levels on computer readable memory.2 Id. at 7-8.
Regarding claim 2, the Examiner finds Gibson teaches performing a
remote control function by sending secure/insecure data from remote
controller 12 to TV 10, but fails to teach or suggest performing a user
orientation function. Final Act. 9. The Examiner, however, finds that Euw
teaches or suggests performing a user orientation function because Euw
teaches two optical transceivers (462/464) that perform a relative orientation
and self-alignment function based on the power that each receives from the
other. Id. at 10 (citing Euw, Figs. 1-11). The Examiner finds it would have
been obvious to combine Euw's user orientation function with Gibson's
remote controller 12 to allow Gibson to "determine the relative orientation
2 The Examiner finds Batey teaches a controller for controlling the power of
an IR device, including a processor and a memory for storing the IR device's
power levels. See Batey, Figs. 1-2. We note that figure 1 of Gibson shows
ROM 22 connected to microprocessor 20.
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Application 12/326,039
of the signal sender and receiver, and then determine the power levels used
for communications." Id.
Appellant argues it would not have been obvious to incorporate Euw' s
teachings into Gibson because the two references are not analogous art. Id.
at 10. We are not persuaded by Appellant's arguments.
Whether a reference is "analogous" art is a fact question. In re Clay,
966 F.2d 656, 658 (Fed. Cir. 1992). Two criteria have evolved for
determining whether a reference is analogous art: (1) whether the reference
is from the same field of endeavor as the invention, regardless of the
particular problem addressed, and (2) if the reference is not from the same
field of endeavor, whether the reference is reasonably pertinent to the
particular problem with which the invention is involved. Id.
Appellant's field of endeavor generally relates to establishing
communications and transferring data between optical devices. For
example, the Specification discloses "Applicant has identified that it would
be useful to have a wireless infrared link ... for simple pairing between two
Bluetooth devices," and also that "Applicant has identified that it would be
useful to determine whether a user is facing or not facing a display device
based on whether an IR link [between the devices] is detected or not
detected." Spec. i-f 19. Euw' s field of endeavor similarly relates to "free-
space optical communications," and to "alignment tracking control" in such
communications. Euw 1:8-10. Gibson's field of endeavor also relates to
establishing communications and transferring data between optical devices,
and in particular to using "a remote controller for controlling a user
apparatus, such as a TV receiver." Gibson, 1 :7-15. Euw and Gibson are
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Application 12/326,039
therefore analogous art because they are in the same field of endeavor as the
invention. See In re Clay, 966 F.2d at 658-59.
Appellant further argues the Examiner erred in rejecting claim 2
because Euw's system "ha[s] nothing to do with detecting a user
orientation," and "do[ es] not have a user orientation detection function."
App. Br. 9. We disagree. Gibson teaches sending information from remote
controller 12 to TV 10, and varying the power level of remote controller 12
as a function of a user selected function. Gibson, 4:5-25, Fig. 3. Gibson
further teaches determining whether the data was successfully transferred by
checking for an expected response from TV 10. Id. at 4:26-33. If no
response is received, Gibson teaches moving remote controller 12 closer to
TV 10 and retransmitting the data. Id.
A person of ordinary skill in the art at the time of Appellant's
invention would have known that there were only a limited number of
reasons why data transmitted by remote controller 12 would not reach TV
10: a malfunction of remote controller 12 or TV 10; a transmit power level
that was too low given the distance between remote controller 12 and TV 10;
an obstacle between remote controller 12 and TV 10; or misalignment of
remote controller 12 and TV 10. In the event remote controller 12 and TV
10 are too far apart, Gibson teaches moving remote controller 12 closer to
TV 10. Gibson, 4:26-33. A person of ordinary skill in the art, at the time of
Appellant's invention, would have found it obvious to instead increase the
transmit power level of remote controller 12. In the event remote controller
12 and TV 10 are misaligned, Euw teaches checking for and correcting the
alignment of the optical transducers in each device. A person of ordinary
skill in the art would have found it obvious, at the time of Appellant's
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Application 12/326,039
invention, to use Euw' s optical alignment routine to check the alignment
between remote controller 12 and TV 10 prior to increasing the power level
of remote controller 12 to rule out the possibility that the data transmission
failure was due to remote controller 12 and TV 10 being misaligned rather
than to remote controller 12 and TV 10 being too far apart.
Accordingly, we agree with the Examiner that claim 2 is unpatentable
over the combination of Gibson, Batey, and Euw. See Final Act. 9-10. As
explained above, the combination teaches or suggests using Euw's optical
orientation routine to establish data communications by confirming data
transmission at a first/minimal power level corresponding to a user
orientation function, 3 and transmitting non-secure data at a higher power
level corresponding to a remote control function once data communications
have been established.
Because our rationale for combining the teachings of Gibson, Batey,
and Euw differs somewhat from the rationale provided by the Examiner, we
designate our affirmance a new ground of rejection under
37 C.F.R. § 41.50(b). See In re Leithem, 661F.3d1316 (Fed. Cir. 2011).
3 Appellant argues Euw's orientation function is not a user orientation
function. App. Br. 9. But Appellant's invention is directed to determining
the orientation between two devices-an IR transmitter and an IR receiver-
where the IR transmitter happens to be mounted on a person (e.g., on a
headset worn by the person). See Spec. i-fi-131, 34, 37. Euw similarly teaches
determining the orientation between two devices-an optical transmitter and
an optical receiver. See Euw, Figs. 4--11. And Gibson teaches the optical
devices can be IR devices, where the orientation of the IR transmitter is
representative of the orientation of a person because it is a hand held remote
controller 12. See Gibson 2:58---64, 3:56-64, Figs. 1-2. Accordingly, we are
not persuaded by Appellant's argument.
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Application 12/326,039
Appellant's arguments for the patentability of claim 19 are
substantially the same as Appellant's arguments for the patentability of
claim 2. Accordingly, we sustain the Examiner's rejection of claim 19 for
the reasons stated above, and designate our affirmance a new ground of
rejection under 37 C.F.R. § 41.50(b). Appellant does not argue the
patentability of claim 20 separately from the patentability of claim 19.
Accordingly, we sustain the Examiner's rejection of claim 20 for the same
reasons as claim 19 stated above, and designate our affirmance a new ground
of rejection. See 37 C.F.R. §§ 41.37(c)(l)(iv), 41.50(b).
Claims 2, 19, and 20 under 35 U.S.C. § 112, f 1 (pre-AJA)
The Examiner rejects claims 2, 19, and 20 for lacking written
description for adjusting a power level of an IR light source based on
selection of a user orientation detection function. Final Act. 3. The
Examiner finds that although the Specification discloses varying the IR
signal power based on user device states, including a facing/no facing
detection state, the Specification does not expressly disclose varying the IR
signal power based on selection of a user orientation detection function. Id.
The Examiner further finds the Specification discloses "multiple IR sources
and multiple photodetectors are used ... to determine the user orientation"
in a user orientation detection function. Ans. 15 (citing Spec. i-fi-137, 53, 54).
Appellant argues paragraphs 31 and 34 of the Specification teach
"adjusting the IR power based on a device function state of detecting
whether the user is facing or not facing an object," and that detecting
whether a user wearing an IR device is facing or not facing an object "is one
example of determining a user orientation." App. Br. 4.
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Appeal2014-003502
Application 12/326,039
We are persuaded by Appellant's argument. The Specification
discloses the IR device state includes a facing/no facing presence detection
state, and that when in that state, a signal from the IR device may be "used
to determine whether the wearer of the multifunction IR device is facing a
particular object, such as his or her computer monitor." Spec. i-fi-131, 34.
The Specification further discloses that "[i]n facing/no facing presence
detection applications, [where] the user is typically anywhere from 1 to 10
feet or more away from the receiver ... a mid-range IR source transmit
power level is used." Id. i134. For other applications, such as a remote
control function, "a higher or maximum IR source transmit power level" is
used. Id. i131.
Accordingly, we agree with Appellant that the Specification provides
written description support for claims 2, 19, and 20, and reverse the
Examiner's rejection of these claims under 35 U.S.C. § 112, i-f l.
DECISION
The Examiner's rejections of claims 1 and 4--7 under 35 U.S.C.
§ 103(a) are affirmed.
The Examiner's rejections of claims 2, 19, and 20 under 35 U.S.C.
§ 112, i-f l are reversed.
The Examiner's rejection of claims 2, 19, and 20 under
35 U.S.C. § 103(a) is affirmed, and the affirmance is designated a new
ground of rejection.
Section 41.50(b) provides that "[a] new ground of rejection pursuant
to this paragraph shall not be considered final for judicial review." Rather,
WITHIN TWO MONTHS FROM THE DATE OF THE DECISION,
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Appeal2014-003502
Application 12/326,039
Appellant must exercise one of the following two options with respect to the
new ground of rejection to avoid termination of the appeal as to the newly
rejected claims:
(1) Reopen prosecution. Submit an appropriate amendment of
the claims so rejected or new evidence relating to the claims
so rejected, or both, and have the matter reconsidered by the
examiner, in which event the proceeding will be remanded
to the examiner. . . .
(2) Request rehearing. Request that the proceeding be reheard
under § 41.52 by the Board upon the same Record ....
No time period for taking any subsequent action in connection with
this appeal maybe extended under 37 C.F.R. § 1.136(a)(l)(iv) (2010).
AFFIRMED
37 C.F.R. § 41.50(b)
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