ORCAM TECHNOLOGIES LTD.

Patent Trials and Appeals Board

Apr 23, 2020

14807321 - (D) (P.T.A.B. Apr. 23, 2020)

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.
14/807,321 07/23/2015 Yonatan Wexler 12234.0034-00000 6089
22852 7590 04/23/2020
FINNEGAN, HENDERSON, FARABOW, GARRETT & DUNNER
LLP
901 NEW YORK AVENUE, NW
WASHINGTON, DC 20001-4413
EXAMINER
MOYER, ANDREW M
ART UNIT PAPER NUMBER
2663
NOTIFICATION DATE DELIVERY MODE
04/23/2020 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):
regional-desk@finnegan.com
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte YONATAN WEXLER and AMNON SHASHUA

Appeal 2019-001404
Application 14/807,321
Technology Center 2600
____________

Before JASON V. MORGAN, JAMES B. ARPIN, and
MICHAEL M. BARRY, Administrative Patent Judges.

BARRY, Administrative Patent Judge.

DECISION ON APPEAL
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s decision to reject claims 1–29, all of the pending claims. See
Non-Final Act. 1–28; Appeal. Br. 1–32. We have jurisdiction under
35 U.S.C. § 6(b).
We affirm in part.

1 We use “Appellant” to refer to the “applicant” as defined in 37 C.F.R.
§ 1.42. Appellant identifies the real party in interest as ORCAM
TECHNOLOGIES LTD. Appeal Br. 1.
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Introduction
The claimed invention “relates to devices and methods for selectively
withholding actions based on recognized gestures.” Spec. ¶ 2. The
Specification’s background discussion focuses on technology and
functionality issues related to wearable devices, see id. ¶¶ 3–4, and the
Specification summarizes the invention as follows:
Embodiments consistent with the present disclosure
provide an apparatus and methods for automatically capturing
and processing images from an environment of a user and
disregarding hand-related triggers of persons other than a user
of a wearable apparatus.
In accordance with a disclosed embodiment, a wearable
apparatus is provided for selectively disregarding triggers
originating from persons other than a user of the wearable
apparatus. The wearable apparatus comprises a wearable image
sensor configured to capture image data from an environment
of the user of the wearable apparatus.
Spec. ¶¶ 5–6.
Claim 1 is representative of the claims on appeal:
1. A wearable apparatus for selectively disregarding
triggers originating from persons other than a user of the
wearable apparatus, the wearable apparatus comprising:
a wearable image sensor configured to capture image
data from an environment of the user of the wearable apparatus;
and
at least one processing device programmed to:
receive the captured image data;
identify in the image data a trigger, wherein the
trigger is associated with at least one action to be
performed by the wearable apparatus;
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identify, in the image data, at least a part of a body
of a person other than the user of the wearable apparatus;
determine, based on the image data, whether the
trigger identified in the image data is associated with the
body of the person other than the user of the wearable
apparatus; and
forgo performance of the at least one action if the
trigger identified in the image data is determined to be
associated with the body of the person other than the user
of the wearable apparatus.
Appeal Br. 24 (Claims App’x).
Background
The Examiner rejected claims 1–29 under 35 U.S.C. § 101 as directed
to a judicial exception (i.e., an abstract idea), without reciting significantly
more. Non-Final Act. 7–8.
The Examiner rejected claims 1–20 and 23–29 under 35 U.S.C.
§§ 112(b) and (f) as indefinite. Non-Final Act. 6–7.
The Examiner rejected claims 1, 2, 4, 7, 8, 10, 12, 13, 15, 18, 19, 21–
23, 25–27, and 29 under 35 U.S.C. § 103 as unpatentable over Prada Gomez
et al. (US 8,558,759 B1; issued Oct. 15, 2013) (“Prada Gomez”) and Kim
(US 2013/0107026 A1; issued May 2, 2013). Non-Final Act. 9–20.
The Examiner rejected claims 3, 5, 6, 9, 11, 14, 16, 17, and 20 under
35 U.S.C. § 103 as unpatentable over Prada Gomez, Kim, and various
tertiary references. Non-Final Act. 21–28.
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ANALYSIS
General § 101 Law and the USPTO 2019 Guidance
An invention is patent-eligible if it claims a “new and useful process,
machine, manufacture, or composition of matter.” 35 U.S.C. § 101. The
U.S. Supreme Court, however, has long interpreted 35 U.S.C. § 101 to
include implicit exceptions: “[l]aws of nature, natural phenomena, and
abstract ideas” are not patentable. E.g., Alice Corp. v. CLS Bank Int’l, 573
U.S. 208, 216 (2014).
In determining whether a claim falls within an excluded category, we
are guided by the Court’s two-step framework, described in Mayo and Alice.
Alice, 573 U.S. at 217–18 (citing Mayo Collaborative Servs. v. Prometheus
Labs., Inc., 566 U.S. 66, 75–77 (2012)). In accordance with that framework,
we first determine what concept the claim is “directed to.” See Alice, 573
U.S. at 219 (“On their face, the claims before us are drawn to the concept of
intermediated settlement, i.e., the use of a third party to mitigate settlement
risk.”); see also Bilski v. Kappos, 561 U.S. 593, 611 (2010) (“Claims 1 and 4
in petitioners’ application explain the basic concept of hedging, or protecting
against risk.”).
Concepts determined to be abstract ideas, and, thus, patent ineligible,
include certain methods of organizing human activity, such as fundamental
economic practices (Alice, 573 U.S. at 219–20; Bilski, 561 U.S. at 611);
mathematical concepts (Parker v. Flook, 437 U.S. 584, 594–95 (1978)); and
mental processes (Gottschalk v. Benson, 409 U.S. 63, 67 (1972)). In
Diamond v. Diehr, the claim at issue recited a judicial exception in the
category of mathematical concepts, but the Court held that “a claim drawn to
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subject matter otherwise statutory does not become nonstatutory simply
because it uses a mathematical formula.” 450 U.S. 175, 187 (1981).
If the claim is “directed to” an abstract idea, we turn to the second
step of the Alice and Mayo framework, where “we must examine the
elements of the claim to determine whether it contains an ‘inventive
concept’ sufficient to ‘transform’ the claimed abstract idea into a patent-
eligible application.” Alice, 573 U.S. at 221 (internal citation omitted). “A
claim that recites an abstract idea must include ‘additional features’ to
ensure ‘that the [claim] is more than a drafting effort designed to
monopolize the [abstract idea].’” Id. (quoting Mayo, 566 U.S. at 77).
“[M]erely requir[ing] generic computer implementation[] fail[s] to transform
that abstract idea into a patent-eligible invention.” Id.
In early 2019, the U.S. Patent and Trademark Office published revised
guidance on the application of § 101. 2019 Revised Patent Subject Matter
Eligibility Guidance, 84 Fed. Reg. 50–57 (Jan. 7, 2019) (“2019 Guidance”);
see also October 2019 Update: Subject Matter Eligibility, 84 Fed. Reg.
55942–53 (Oct. 17, 2019) (providing “examples as well as a discussion of
various issues raised by the public comments” to the guidance promulgated
in January 2019). Under the 2019 Guidance, we first look to whether the
claim recites:
(1) any judicial exceptions, including certain groupings
of abstract ideas (i.e., mathematical concepts, certain methods
of organizing human activity such as a fundamental economic
practice, or mental processes); and
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(2) additional elements that integrate the judicial
exception into a practical application (see Manual of Patent
Examining Procedure (MPEP) § 2106.05(a)–(c), (e)–(h)).2
See 2019 Guidance, 84 Fed. Reg. at 52, 54–55. Only if a claim (1) recites a
judicial exception and (2) does not integrate that exception into a practical
application, do we then look to whether the claim:
(3) adds a specific limitation beyond the judicial
exception that are not “well-understood, routine, conventional”
in the field (see MPEP § 2106.05(d)); or
(4) simply appends well-understood, routine,
conventional activities previously known to the industry,
specified at a high level of generality, to the judicial exception.
See 2019 Guidance, 84 Fed. Reg. at 56.
Our § 101 Analysis
Alice/Mayo Step One, 2019 Guidance Step 2A Prong One
As we begin our analysis under prong one of Step 2A of the 2019
Guidance, we keep in mind the caveat that it is improper to express ideas
recited by claims in a way “untethered from the language of the claims.”
Enfish, LLC v. Microsoft Corp., 822 F.3d 1327, 1337 (Fed. Cir. 2016). We
also note that artisans of ordinary skill would recognize that the field of
wearable devices, in the context of Appellant’s Specification and Claims, is
technological. See, e.g., Spec. ¶¶ 2–4, 37–39. Under prong one, however,
we put aside claim 1’s recitals of “a wearable image sensor” and “processing
device,” and consider the abstractedness of the remaining claim limitations,
under their broadest reasonable interpretation, as they would have been
understood by artisans of ordinary skill.

2 All references to the MPEP are to Rev. 08.2017 (Jan. 2018).
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The processing device of claim 1 is programmed to perform what is
essentially a five-step method, which the preamble explains is “for
selectively disregarding triggers originating from persons other than a user
of the wearable apparatus.” The first two steps recite “receiv[ing] the
captured image data” and “identify[ing] in the image data a trigger, wherein
the trigger is associated with at least one action to be performed by the
wearable apparatus.” Artisans of ordinary skill understand these first two
steps’ requirements recite an idea that may be performed mentally, e.g., by a
person handed a picture and instructed to identify hands in the picture that
are not the hands of the person who took the picture. Thus, the first two
steps recite an abstract idea. See 2019 Guidance, 84 Fed. Reg. at 52
(identifying “[m]ental processes” as a category of patent-ineligible abstract
ideas). The third step, “identify[ing], in the image data, at least a part of a
body of a person other than the user of the wearable apparatus,” also is met
by the foregoing example of human inspection of a picture to identify hands.
In particular, when a human perceives a third party’s hands in a picture
taken from the perspective of the user of the wearable apparatus, that person
mentally “identif[ies], in the image data, at least a part of a body of a person
other than the user of the wearable apparatus,” as recited.
In view of the functionality recited for the processing device of
claim 1, in accordance with the 2019 Guidance, we determine claim 1 recites
an abstract idea under prong one of our analysis under Alice/Mayo step one.
Because claim 1 recites an abstract idea, we now proceed to prong two of the
2019 Guidance to determine whether claim 1 is directed to that abstract idea.
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Alice/Mayo Step One, 2019 Guidance Step 2A Prong Two
We next consider whether, beyond the recited judicial exception,
claim 1 recites additional elements that, individually or in combination,
integrate any recited judicial exception into a practical application. See 2019
Guidance, 84 Fed. Reg. at 54–55. It does. In particular, claim 1 recites a
wearable apparatus with an image sensor and a programmed processor for
trigger-based control of the wearable apparatus based on a determination
made using image data captured by the image sensor. Thus, the wearable
apparatus and image sensor are integral to the functionality performed by the
processing device.
The Specification explains that embodiments of the claimed invention
address practical issues for wearable devices, such as “enabl[ing] context
specific determinations based on the automatic capturing and processing of
images to interpret certain gestures of the user or others.” Spec. ¶ 4. Here,
the recited limitations for the wearable apparatus with its image sensor do
“more than generally link the use of a judicial exception to a particular
technological environment or field of use”—they constitute additional
elements that “use[ the] judicial exception in conjunction with[] a particular
machine or manufacture that is integral to the claim.” 2019 Guidance, 84
Fed. Reg. at 55.
Thus, we agree with Appellant the Examiner erred in rejecting claims
1–29 under § 101.
The 35 U.S.C. § 112(b) Rejections
Appellant does not argue error in the Examiner’s rejection of claims
24, 25, 28, and 29 under § 112(b) as lacking antecedent basis for “the
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confidence threshold,” as recited (see Non-Final Act. 6). Appellant responds
that it ‘will address any potential antecedent basis issues in the identified
dependent claims following resolution of the appeal.” Appeal Br. 7 .
Appellant may not reserve arguments for some later time. Arguments not
made are considered waived. See 37 C.F.R. § 41.37(c)(1)(iv). Although
summary affirmance generally is appropriate for an uncontested rejection,
see 37 C.F.R. § 41.37(c)(1)(iv), here, we summarily affirm this rejection
only with respect to claim 28. We find, however, that (a) claims 24 and 25
depend from claim 23, which provides antecedent basis for “the confidence
threshold” by reciting “a confidence threshold,” and (b) claim 29 depends
from claim 27, which also recites “a confidence threshold.” See Appeal Br.
30–32 (Claims App’x).
In separately rejecting claims 1–20 and 23–29 as indefinite under
§ 112(b), the Examiner determines “it is unclear whether the claim element
[‘processing device’] invokes 35 U.S.C. [§] 112(f).” Non-Final Act. 6
(emphasis added); see also id. at 7. Appellant argues that “[o]ne of ordinary
skill in the art reading the specification would understand that ‘processing
device’ would have a sufficiently definite meaning as the name of a structure
to perform the claimed functions. Accordingly, § 112(f) does not apply.”
Appeal Br. 7 (citing MPEP § 2181(I)(A)). The Examiner responds that,
although a claim’s lack of use of the term “means for” presumably
demonstrates intent not to have the claim limitation be subject to
interpretation under § 112(f), the facts here overcome that presumption and
indicate that “processing device,” as recited, is a nonce word, i.e., “a generic
placeholder (a term that is simply a substitute for the term ‘means’).”
Answer 29 (citing Welker Bearing Co. v. PHD, Inc., 550 F.3d 1090, 1096
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(Fed. Cir. 2008)); see also id. at 30–31. Appellant replies by reiterating the
argument from the Appeal Brief. See Reply Br. 5.
The crux here is that uncertainty as to whether § 112(f) applies is the
premise upon which the Examiner bases the § 112(b) rejection of claims 1–
20 and 23–29. Because we agree with the Examiner, however, that
“processing device,” as recited in claim 1, is effectively a nonce word and,
accordingly, the functional limitations associated with the recited processing
device are subject to interpretation under § 112(f), see Williamson v. Citrix
Online, LLC, 792 F.3d 1339, 1344, 1348–51 (Fed. Cir. 2015) (en banc)
(determining “distributed learning control module” was effectively the same
as “means for” and subject to interpretation under § 112(f)), that uncertainty
no longer exists, and the Examiner’s basis for finding indefiniteness no
longer applies.
Accordingly, we do not sustain the § 112(b) rejection of claims 1–20
and 23–27, and 29.
The § 103 Rejections
Claim 1
Appellant argues error in the § 103 rejection of claims 1, 2, 4, 7, 8, 10,
12, 13, 15, 18, 19, 21–23, and 25 together based on claim 1. Appeal Br. 15–
18. Appellant presents no arguments for the § 103 rejections of claims 3, 5,
6, 9, 11, 14, 16, 17, and 20 that are substantively separate from the
arguments presented for claim 1. See id. at 20–22. Thus, for the § 103
rejections, claims 2–23 and 25 stand or fall with claim 1. See 37 C.F.R.
§ 41.37(c)(1)(iv).
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In rejecting claim 1, the Examiner finds Prada Gomez teaches all
limitations (including “a user of the wearable apparatus”) except for one:
“identify[ing], in the image data, at least a part of a body of a person other
than the user of the wearable apparatus,” which the Examiner finds Kim
teaches. See Non-Final Act. 9–11 (citing Kim ¶¶ 78–88, Figs. 3–8).
Appellant contends the Examiner errs because, given the conceded failure of
Prada Gomez to teach “identify[ing] . . . a part of a body of a person other
than the user of the wearable apparatus,” it necessarily follows that Prada
Gomez cannot teach “determin[ing], based on the image data, whether the
trigger identified in the image data is associated with the body of the person
other than the user of the wearable apparatus,” as recited. Appeal Br. 15–16.
Appellant’s argument is unpersuasive. Appellant interprets Prada
Gomez too narrowly. Prada Gomez teaches the disputed determining step
by disclosing (a) a “wearable head-mounted display (HMD)” that analyzes
video data to interpret if a hand gesture is made by the HMD wearer (i.e., by
“making a determination that video data from a video camera of the
wearable HMD includes a hand gesture”) and, (b) using the example of a
two-handed heart-shaped gesture, “determining that the two hands are
associated with the wearable HMD via analysis of the video data.” Prada
Gomez, 1:23–35; see also id. at 25:1–34. In particular, ordinarily skilled
artisans would have understood the negative implication of Prada Gomez’s
disclosure of determining whether a gesture is associated with the HMD
wearer also teaches determining whether the gesture is not so associated. In
other words, a gesture not associated with the HMD wearer is, by definition,
associated with someone else. Thus, in other words, by its disclosure of
identifying a hand gesture and then determining it is not associated with the
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HMD wearer, Prada Gomez teaches “determin[ing], based on the image
data, whether the trigger identified in the image data is associated with the
body of the person other than the user of the wearable apparatus,” as recited
by claim 1.
Appellant also contends that, because “Kim is not directed to a
wearable apparatus,” Kim “thus cannot teach or suggest ‘identifying . . . at
least a part of a body of a person other than the user of the wearable
apparatus,’ as recited.” Appeal Br. 16 (all modifications in original). This
argument is also unpersuasive. References cited by the Examiner must be
read, not in isolation, but for what they fairly teach in combination with the
prior art as a whole. See In re Merck & Co., 800 F.2d 1091, 1097 (Fed. Cir.
1986). One cannot show nonobviousness by attacking references
individually when the rejection is based on a combination of references. In
re Keller, 642 F.2d 413, 426 (CCPA 1981). The relevant inquiry is whether
the claimed subject matter would have been obvious in light of the combined
teachings of those references. Keller, 642 F.2d at 426; Merck, 800 F.2d at
1097.
Here, the rejection relies on Prada Gomez, not Kim, for teaching “a
wearable apparatus for selectively disregarding triggers originating from
persons other than a user of the wearable apparatus.” Non-Final Act. 9–10.
The rejection relies on Kim (in view of the wearable apparatus teachings of
Prada Gomez) to teach “identify[ing], in the image data, at least a part of a
body of a person other than the user” (of the wearable apparatus, as taught
by Prada Gomez). Id. at 10. We discern no error in these findings. In other
words, the rejection does not rely on Kim for teaching “the wearable
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apparatus” and, thus, Appellant’s argument that Kim is deficient because
Kim does not disclose a wearable apparatus is unpersuasive.3
Appellant further contends “the Office Action has provided no
motivation for one of ordinary skill in the art to modify the teachings of the
prior art to achieve the claimed combinations.” Appeal Br. 16; see also id.
at 17 (arguing “Kim’s disclosure is not applicable to the claimed techniques
or to the Prada Gomez system and, therefore, does not provide any
motivation to modify Prada Gomez” and “it appears the Examiner’s
conclusion of obviousness is based on impermissible hindsight”), 18; see
also Reply Br. 8 (arguing that “[b]ecause there is also no teaching or
suggestion in Prada Gomez for eliminating hands of other persons, it
appears the Examiner’s conclusion of obviousness is based on impermissible
hindsight”).
This argument is unpersuasive. The Examiner states in the rejection:
It would have been obvious to one of ordinary skill in the
art at the time of filing to use the hand detection of Kim to
detect the hands of other persons in Prada Gomez’s images,
because it is predictable that doing so would improve the
accuracy of Prada Gomez’s user hand detection by eliminating
the hands of other persons. It is predictable that hands
determined to belong to other persons cannot also belong to the
user.
Non-Final Act. 10–11; see also Ans. 34.

3 Thus, Appellant’s argument that the Examiner errs “because neither Kim
nor Prada Gomez ‘identify . . . a part of a body of a person other than the
user of the wearable apparatus’” (Appeal Br. 16; Reply Br. 8 (ellipsis in
originals)) is similarly unpersuasive, because it does not address that the
rejection relies on the combined teachings of Kim and Prada Gomez for
those quoted limitations.
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This articulates sufficient “reasoning with some rational underpinning
to support the legal conclusion of obviousness.” In re Kahn, 441 F.3d 977,
988 (Fed. Cir. 2006) (cited with approval in KSR Int’l Co. v. Teleflex Inc.,
550 U.S. 398, 418 (2007)). Further, we note Appellant does not point to any
evidence of record that Examiner’s proposed combination would be
“uniquely challenging or difficult for one of ordinary skill in the art” or
“represented an unobvious step over the prior art.” Leapfrog Enters. Inc. v.
Fisher-Price, Inc., 485 F.3d 1157, 1162 (Fed. Cir. 2007) (citing KSR, 550
U.S. at 418–19).
With respect to hindsight,
[a]ny judgment on obviousness is in a sense necessarily a
reconstruction based upon hindsight reasoning, but so long as it
takes into account only knowledge which was within the level
of ordinary skill at the time the claimed invention was made
and does not include knowledge gleaned only from applicant’s
disclosure, such a reconstruction is proper.
In re McLaughlin, 443 F.2d 1392, 1395 (CCPA 1971). Appellant provides
no evidence of secondary considerations, which our reviewing court guides
“operates as a beneficial check on hindsight.” Cheese Sys., Inc. v. Tetra Pak
Cheese & Powder Sys., 725 F.3d 1341, 1352 (Fed. Cir. 2013). “A person of
ordinary skill is also a person of ordinary creativity, not an automaton.”
KSR, 550 U.S. at 421. We are persuaded that here, claim 1 exemplifies the
principle that “[t]he combination of familiar elements according to known
methods is likely to be obvious when it does no more than yield predictable
results.” Id. at 416.
Accordingly, we sustain the § 103 rejection of claim 1. In doing so,
as consistent with the foregoing, we adopt the findings and reasoning of the
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Examiner. Accordingly, we also sustain the § 103 rejection of claims 2–23,
and 25.
Claims 26, 27, and 29
Appellant nominally separately argues claims 26, 27, and 29 together
based on claim 26. Appeal Br. 18–20; Reply Br. 9–10. In particular,
Appellant points to “‘responsive to determining at least a part of a body of
a person other than the user of the wearable apparatus is represented in
the image data,’ as required by claim 26,” and contends Prada Gomez is
deficient “[s]imilar to the above analysis with respect to claim 1.” Appeal
Br. 19; see also id. at 18, 20; Reply Br. 9–10. This argument is unpersuasive
for the reasons discussed above for claim 1.
Accordingly, we sustain the § 103 rejection of claims 26, 27, and 29.
CONCLUSION
In summary:
Claims
Rejected 35 U.S.C. §
Reference(s)/
Basis Affirmed Reversed
1–29 101 1–29
1–20, 23–29 112(b) 28 1–20,
23–27, 29
1, 2, 4, 7, 8,
10, 12, 13, 15,
18, 19, 21–23,
25–27, 29
103 Prada Gomez,
Kim
1, 2, 4, 7, 8,
10, 12, 13,
15, 18, 19,
21–23,
25–27, 29

3, 14 103 Prada Gomez,
Kim, Imoto4
3, 14

4 Imoto et al. (US 2015/0054742 A1; published Feb. 26, 2015).
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5, 16 103 Prada Gomez,
Kim, Iwamura5
5, 16
6, 17 103 Prada Gomez,
Kim, Terada6
6, 17
9, 20 103 Prada Gomez,
Kim, Manders7
9, 20
11 103 Prada Gomez,
Kim, Na’aman8
11
Overall
Outcome
1–23, 25–29 24

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 IN PART

5 Iwamura (US 2002/0057383 A1; published May 16, 2002).
6 Terada et al. (US 2014/0172231 A1; published June 19, 2014).
7 Manders et al. (US 2011/0299774 A1; published Dec. 8, 2011).
8 Na’aman et al. (US 2012/0212593 A1; published Aug. 23, 2012).