Ex Parte Wang et alDownload PDFPatent Trial and Appeal BoardFeb 28, 201713102658 (P.T.A.B. Feb. 28, 2017) Copy Citation 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. 13/102,658 05/06/2011 Kong Qiao Wang 042933/405341 7575 10949 7590 Nokia Corporation and Alston & Bird LLP c/o Alston & Bird LLP Bank of America Plaza, 101 South Tryon Street Suite 4000 Charlotte, NC 28280-4000 EXAMINER DICKE, CHAD M ART UNIT PAPER NUMBER 2693 NOTIFICATION DATE DELIVERY MODE 03/02/2017 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): u sptomail @ alston .com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte KONG QIAO WANG and JANI PETRI JUHANI OLLIKAINEN Appeal 2016-004671 Application 13/102,6581 Technology Center 2600 Before ELENI MANTIS MERCADER, JOHN P. PINKERTON, and TERRENCE W. McMILLIN, Administrative Patent Judges. PINKERTON, Administrative Patent Judge DECISION ON APPEAL Appellants appeal under 35 U.S.C. § 134(a) from the Examiner’s Final Rejection of claims 2, 4—16, 18, and 20—24, which are the only claims pending in the application. Claims 1,3, 17, and 19 are canceled. We have jurisdiction under 35 U.S.C. § 6(b). We affirm. 1 Appellants identify Nokia Technologies Oy as the real party in interest. App. Br. 2. Appeal 2016-004671 Application 13/102,658 STATEMENT OF THE CASE Introduction Appellants’ disclosed and claimed invention is generally directed to gesture recognition. Spec. 1,1. 5.2 Claim 21 is representative and reproduced below (with the disputed limitation emphasized)'. 21. Apparatus, the apparatus having at least one processor and at least one memory having computer-readable code stored thereon which when executed controls the at least one processor: to receive signals from a first sensor configured to detect optical electromagnetic radiation and a second sensor configured to detect non-optical electromagnetic radiation, the first and second sensors having respective first and second fields of view which partially overlap to provide a space in which both the first and second sensors can detect a common object, and: in response to detecting a common object in said space, to generate first and second signature information using information received from the first and second sensors, respectively, and then to identify from third signature information generated using the first and second signature information, a predetermined gesture based on detected movement of the common object, and to control a user interface function in accordance with the identified gesture, wherein the at least one processor is configured to receive information from one or more additional sensors and to 2 Our Decision refers to the Final Action mailed Apr. 14, 2015 (“Final Act.”); Appellants’ Appeal Brief filed Oct. 14, 2015 (“App. Br.”) and Reply Brief filed Apr. 4, 2016 (“Reply Br.”); the Examiner’s Answer mailed Feb. 3, 2016 (“Ans.”); and the original Specification filed May 6, 2011 (“Spec.”). 2 Appeal 2016-004671 Application 13/102,658 adjust relative weightings of the first and second signature information used to generate the third signature information based on the information from the one or more additional sensors, wherein the first signature information is generated using information received from the first sensor configured to detect optical electromagnetic radiation and wherein the second signature information is generated using information received from the second sensor configured to detect non-optical electromagnetic radiation. Rejections on Appeal Claims 2, 4—8, 13—16, 18, and 20-24 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Bell (US 2006/0139314 Al; published June 29, 2006) and Anderson (US 2010/0063672 Al; published Mar. 11, 2010). Claims 9-12 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Bell, Anderson, and Schobben et al. (US 2006/0279528 Al; published Dec. 14, 2006) (“Schobben”). ANALYSIS We have reviewed the Examiner’s rejections in light of Appellants’ arguments in the Briefs and are not persuaded the Examiner has erred. Unless otherwise noted, we adopt as our own the findings and reasons set forth by the Examiner in the Office Action from which this appeal is taken (Final Act. 2—22) and in the Examiner’s Answer (Ans. 2—11), and we concur with the conclusions reached by the Examiner. For emphasis, we consider and highlight specific arguments as presented in the Briefs. 3 Appeal 2016-004671 Application 13/102,658 Rejection of Claims 2, 4—8, 12—16, 18, and 20—243 under § 103(a) Proposed Combination of Bell and Anderson Appellants argue Anderson cannot be properly combined with Bell because Bell relates to an interactive display system and Anderson discloses an apparatus for processing sensor data and controlling movement of a vehicle. App. Br. 5. In the Reply Brief, Appellants argue Bell and Anderson are not from analogous fields and are not directed to solving a similar problem, as Bell relates to detecting gestures performed by human hands, while Anderson uses radar to detect objects much larger than human hands, such as telephone poles and trees. Reply Br. 1. Appellants also argue the Examiner’s characterization of both references on page 22 of the Final Action “as incorporating two or more sensors located within a device, wherein the sensors detect. . . information occurring near the device, and where the information is acted upon by the system” is overly general because the independent claims require “identification of a predetermined gesture based on detected movement of an object and the control of a user interface function in accordance with the identified gesture.” Id. at 5—6. According to Appellants, the radar sensor of Anderson is “described . . . only in relation to dead reckoning ... to calculate the location of a vehicle using locations of ‘non-mobile objects, such as telephone poles, trees, roads and other suitable landmarks.’” Id. at 6 (citing Anderson | 52, 54). Thus, Appellants argue one skilled in the art would not have looked to Anderson and, in turn, combined Anderson with Bell in an effort to obviate the 3 We decide the rejection of claims 2, 4—8, 13—16, 18, and 20-24, which are rejected under the first-stated ground of rejection, on the basis of representative claim 21. See 37 C.F.R. § 41.37(c)(l)(iv). 4 Appeal 2016-004671 Application 13/102,658 claims which recite the receipt of signals from a second sensor configured to detect non-optical electromagnetic radiation from which an object may be detected and a predetermined gesture may then be identified. Id. Appellants further argue the processing of signals from a radar sensor for dead reckoning is “markedly different” from processing signals to detect an object and identify a predetermined gesture, as required by the independent claims and, therefore, the combination of Bell and Anderson “would not yield the requisite predictable results and, instead, the combination would lack the reasonable expectation of success” required to properly combine the references. Id. at 6—7. We are not persuaded by Appellants’ arguments that the Examiner erred by combining Bell and Anderson. First, the Examiner finds, and we agree, Anderson is reasonably pertinent to the problem with which Appellants’ were concerned. Ans. 5. In that regard, we note Appellants’ Specification states: Embodiments described herein comprise a device or terminal, particularly a communications terminal, which uses complementary sensors to provide information characterising the environment around the terminal. In particular, the sensors provide information which is processed to identify an object in respective sensing zones of the sensors, and the object’s motion, to identify a gesture. Spec. 5,11. 15-19. Appellants argue Bell and Anderson are not “directed to solving a similar problem.” See Reply Br. 1. The test, however, for determining whether a reference is “analogous art” is whether a reference “is reasonably pertinent to the problem with which the inventor was concerned in order to rely on that reference as a basis for rejection.” In re Kahn, 441 F.3d 977, 5 Appeal 2016-004671 Application 13/102,658 986-87 (Fed. Cir. 2006) (citing In re Oetiker, 977 F.2d 1443, 1447 (Fed. Cir. 1992)). “A reference is reasonably pertinent if, even though it may be in a different field from that of the inventor’s endeavor, it is one which, because of the matter with which it deals, logically would have commended itself to an inventor’s attention in considering his problem.” In re Clay, 966 F.2d 656, 659 (Fed. Cir. 1992). Here, the Examiner finds claim 21 is directed to a processor, memory, and two sensors: a first sensor configured to detect optical electromagnetic radiation, such as a camera; and, a second sensor to detect non-optical electromagnetic radiation, such as a radio wave sensor or an acoustic detector. Ans. 3. The Examiner finds the primary reference Bell teaches a system having a processor and memory, which uses multiple sensors (cameras) as a means of object detection. Id. Thus, the Examiner finds “Bell is based on multiple sensors detecting an object and using the sensor- created-signals to adjust the functionality of the device.” Id. at 3^4. The Examiner also finds: Secondary reference, Anderson discloses a system which also uses multiple sensors for detecting objects and wherein the sensors in system are used to detect optical electromagnetic radiation (camera) and non-optical electromagnetic radiation (radar). Both references teach the use of multiple sensors for detecting objects and using the signals provided by the sensors as a means for adjusting the system. Id. at 4; see also id. at 6—7. Thus, we agree with the Examiner’s finding that Anderson is reasonably pertinent to the problem addressed by Appellants of using multiple sensors to detect objects around the device and modify the system because, as the Examiner finds, “Anderson provides additional means for 6 Appeal 2016-004671 Application 13/102,658 detecting objects and providing inputs and determining system changes based on detection of objects by multiple sensors (Anderson, Fig. 8, [0072]).” Id. at 5. Second, we are not persuaded by Appellants’ arguments that (1) the radar sensor of Anderson is described only in relation to dead reckoning using locations of non-mobile objects, (2) the processing of signals from a radar sensor for dead reckoning is “markedly different” from processing signals to detect an object and identify a predetermined gesture, and (3) the combination of Bell and Anderson would not yield predictable results and would lack reasonable expectation of success. See App. Br. 6—7. Regarding the use of radar in Anderson, the Examiner finds, and we agree, Anderson specifically teaches that “[r]adar 514 uses electromagnetic waves to identify the range, altitude, direction, or speed of both moving and fixed objects.” Ans. 4 (citing Anderson 152). (Emphasis added). Appellants’ argument that the processing of radar signals is “markedly different” from processing signals to detect to an object is not persuasive because it is unsupported by any evidence or citation to the record. Mere attorney arguments and conclusory statements that are unsupported by factual evidence are entitled to little probative value. In re Geisler, 116 F.3d 1465, 1470 (Fed. Cir. 1997); In re De Blauwe, 736 F.2d 699, 705 (Fed. Cir. 1984). Thus, for these reasons, we are also not persuaded by Appellants’ arguments that the combination of Bell and Anderson would not yield predictable results and would lack a reasonable expectation of success. In that regard, we agree with the following finding of the Examiner: Therefore, one of ordinary skill would have combined Bell and Anderson with a reasonable expectation of success, as the combination of the two references replace one of the multiple 7 Appeal 2016-004671 Application 13/102,658 sensors for detecting objects in Bell, with one of the multiple sensors for detecting objects in Anderson, to provide a system which can detect optical and non-optical electromagnetic radiation with the purpose of detecting objects, thereby providing a signal which alters the system and system operation. Ans. 4—5. In the Reply Brief, Appellants make two new arguments. First, Appellants argue it would not be proper to combine Bell and Anderson “to identify from third signature information . . . a predetermined gesture based on detected movement of the common object,” and “Bell and Anderson would not be combinable to monitor a common object without further inventive effort.” Id. at 1—2. Second, Appellants argue “the sensors of the two prior art documents would need to be able to detect a common object to be properly combinable.” Id. at 2. Because these arguments are raised by Appellants for the first time in the Reply Brief not in response to a shift in the Examiner's position and without otherwise showing good cause, they are waived. See 37 C.F.R. § 41.41(b)(2); see also Ex parte Borden, 93 USPQ2d 1473, 1474 (BPAI 2010) (informative) (“[T]he reply brief [is not] an opportunity to make arguments that could have been made in the principal brief on appeal to rebut the Examiner’s rejections, but were not.”). Does Combination teach Disputed Limitation? Appellants argue that, even if combined, “Anderson does not teach or suggest the adjustment of weights based on information from different sensors with the weighting being applied to signature information that has been generated from the signals received from the second sensor that has detected non-optical electromagnetic radiation, as recited by the independent claims.” App. Br. 7—8. Appellants argue the Examiner improperly relies on paragraph 72 of Anderson because it only relates to “visible cameras and 8 Appeal 2016-004671 Application 13/102,658 LIDAR (a GPS receiver dos not have a field of view to detect an object, as claimed).” Id. at 8. Appellants also argue there is no motivation or suggestion to modify Anderson to weigh data from a sensor configured to detect non-optical electromagnetic radiation “since any alleged weighting is specifically described with respect to signals received from other sources.” Id. We do not find Appellants’ arguments persuasive. Appellants’ argument that Anderson does not relate to the weighting of signature information derived from any sensor configured to detect non-optical electromagnetic radiation is not persuasive because it attacks Anderson individually, whereas the Examiner’s rejection is based on the combined teachings of Bell and Anderson. In re Merck & Co. Inc., 800 F.2d 1091, 1097 (Fed. Cir. 1986) (“Non-obviousness cannot be established by attacking references individually where the rejection is based upon the teachings of a combination of references.”). The relevant inquiry is whether the claimed subject matter would have been obvious to those of ordinary skill in the art in light of the combined teachings of the references. See In re Keller, 642 F.2d 413, 425 (CCPA 1981). Here, the Examiner finds, and we agree, that Bell teaches first, second, and third signature information, which is provided by multiple sensors. Ans. 8—9 (citing Bell Fig. 1,146). The Examiner also finds, and we agree, Anderson discloses a system using a plurality of sensors, including cameras and radar, for detecting objects to provide input to a vehicle system. Id. (citing Anderson Figs. 2A, 3, 5,143); see also Final Act. 5. Contrary to Appellants’ argument that paragraph 72 of Anderson relates only to “visible cameras and FIDAR” (see App. Br. 8), paragraph 72 describes Figure 10 9 Appeal 2016-004671 Application 13/102,658 and broadly teaches “prioritizing sensor data,” which the Examiner finds, and we agree, includes sensor data from cameras and radar, as taught by Anderson.4 See Final Act. 5 (citing Anderson Fig. 5,172). The Examiner further finds, and we agree, Anderson teaches “a process of weighing certain data provided by the different sensors more heavily than other sensors.” Ans. at 9—10 (citing Anderson 173). Thus, the Examiner finds the combination of Bell and Anderson teaches or suggests the disputed limitation: As previously cited, both Bell and Anderson use multiple sensors for providing input to the system. Where Bell only uses multiple types of cameras for optical electromagnetic radiation detection; Anderson uses multiple types of sensors and can detect optical electromagnetic radiation and non-optical electromagnetic radiation. With Anderson disclosing the weighing of sensor information between multiple sensors, the same teaching can be applied to Bell who also uses multiple sensors. As cited previously, the third signature information is the combination of information from the plurality of sensors, therefore, if one sensor has a higher weighing than another sensor, the combined third signature information would also be affected; thereby teaching the claimed limitation of “ . . . receiving information from one or more additional sensors and adjusting relative weightings of the first and second signature information used to generate the third signature information based on the information from the one or more additional sensors, wherein the first signature information is generated using information received from the first sensor configured to detect optical electromagnetic radiation and wherein the second signature information is generated using information received from the second sensor configured to detect non-optical electromagnetic radiation.” 4 Because Anderson broadly teaches weighing sensor data, which includes cameras and radar, Appellants’ argument that there is no motivation or suggestion to modify Anderson to weigh data from a sensor configured to detect non-optical electromagnetic radiation is not persuasive. 10 Appeal 2016-004671 Application 13/102,658 Id. at 10—11. For the reasons set forth by the Examiner, we find the preponderance of the evidence supports the Examiner’s findings that the combination of Bell and Anderson teaches or suggests the disputed limitation of claim 21. Accordingly, we are not persuaded the Examiner erred in (1) finding Bell and Anderson are properly combinable as analogous art, (2) finding the combination of Bell and Anderson teaches or suggests the disputed limitation of claim 21, and (2) concluding that the combination of Bell and Anderson renders the subject matter of claim 21 obvious under 35 U.S.C. § 103(a). Thus, we sustain the Examiner’s rejection of claim 21. For the same reasons, we sustain the Examiner’s rejection of independent claims 14 and 20, as well as dependent claims 2, 4—8, 13, 15, 16, 18, and 22—24, which are not separately argued. Rejection of Claims 9—12 under § 103(a) Appellants do not advance substantive separate arguments for claims 9-12, which are rejected under the second-stated ground of rejection. Appellants contend these claims are allowable for the same reasons argued with respect to claim 21, from which they depend. See App. Br. 7—9. However, for the reasons discussed above regarding the first-stated ground of rejection, we sustain the Examiner’s rejection of claim 21 and, therefore, we sustain the rejection of claims 9—12. 11 Appeal 2016-004671 Application 13/102,658 DECISION We affirm the Examiner’s rejections of claims 2, 4—16, 18, and 20—24 under 35 U.S.C. § 103(a). No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a)(l)(iv). AFFIRMED 12 Copy with citationCopy as parenthetical citation