Smith, Gregory Paul.

Patent Trials and Appeals Board

Apr 14, 2020

14798216 - (D) (P.T.A.B. Apr. 14, 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.
14/798,216 07/13/2015 Gregory Paul Smith 255900USCON 9085
149118 7590 04/14/2020
Colby Nipper / Google
291 East Shore Drive
Suite 200
Eagle, ID 83616
EXAMINER
PENG, HUAWEN A
ART UNIT PAPER NUMBER
2158
NOTIFICATION DATE DELIVERY MODE
04/14/2020 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):
docket@colbynipper.com
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________________

Ex parte GREGORY PAUL SMITH1
____________________

Appeal 2019-000404
Application 14/798,216
Technology Center 2100
____________________

Before JON M. JURGOVAN, SHARON FENICK, and
RUSSELL E. CASS, Administrative Patent Judges.

JURGOVAN, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE
Appellant seeks review under 35 U.S.C. § 134(a) from the Examiner’s
Non-Final Rejection of claims 1, 3–14, 16–19, and 22. We have jurisdiction
under 35 U.S.C. § 6(b).
We AFFIRM.2

1 We use the word “Appellant” to refer to “applicant” as defined in
37 C.F.R. § 1.42. According to Appellant, the real party in interest is
Google Technology Holdings LLC. Appeal Br. 3.
2 Our Decision refers to the Specification (“Spec.”) filed July 13, 2015, the
Non-Final Office Action (“Non-Final Act.”) mailed December 11, 2017, the
Appeal Brief (“Appeal Br.”) filed May 2, 2018, the Examiner’s Answer
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CLAIMED SUBJECT MATTER
The claims are directed to a computing device that has a touch-
sensitive area to receive gesture input to control one of multiple remote
devices. Spec. Abstract. A single gesture input can be used to wake-up
and/or unlock a remote device. Id. ¶¶ 4–5. The single gesture input further
causes the computing device to display a custom screen to control the
selected remote device. Id. ¶ 5.
Claims 1, 9, and 14 are independent. The remaining claims are
dependent from one of these three claims. Claim 1, reproduced below, is
representative of the claimed invention:
1. A computing device, comprising:
a touch-sensitive input device configured to receive
gesture inputs;
a memory comprising stored gesture patterns for a
plurality of remote devices, each gesture pattern corresponding
to a wake-up signal for a particular remote device;
a communication interface to wirelessly communicate
between the computing device and the remote devices; and
a processor operably coupled to the touch-sensitive input
device, the memory, and the communication interface, the
processor configured to:
receive a single gesture input;
compare the single gesture input to the gesture
patterns; and
based on the comparison of the single gesture input
to the gesture patterns:
determine a remote device of the plurality of
remote devices that corresponds to the single
gesture input;

(“Ans.”) mailed September 17, 2018, and the Reply Brief (“Reply Br.”) filed
October 16, 2018.
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output a wake-up signal for the remote
device configured to cause the remote device to
transition to an active state; and
cause the communication interface to send
the wake-up signal to the remote device.
Appeal Br. 28 (Claims Appendix).

REFERENCES
The prior art relied upon by the Examiner is:
Name Reference Date
Smith US 9,081,810 B1 July 14, 2015
Breed US 2005/0046584 A1 March 3, 2005
Marvit US 2005/0212753 A1 Sept. 29, 2005
Kryze US 2012/0162073 A1 June 28, 2012

REJECTIONS3
I. Claims 1, 3–14, 16–19, and 22 stand rejected on the ground of
nonstatutory obviousness-type double patenting over claims 1–13 of Smith.
Non-Final Act. 4.4
II. Claims 1, 5–9, 11–14, 18, 19, and 22 stand rejected under 35
U.S.C. § 103 based on Marvit and Breed. Non-Final Act. 5–14.
III. Claims 3, 4, 10, 16, and 17 stand rejected under 35 U.S.C.
§ 103 based on Marvit, Breed, and Kryze. Non-Final Act. 15–16.

3 The rejections based on patent-ineligible subject matter under 35 U.S.C.
§ 101 and the rejections of claims 2 and 15 under 35 U.S.C. § 103 were
withdrawn by the Examiner. See Ans. 3.
4 See Non-Final Office Action mailed March 4, 2016, at pages 2–6, for
rejection particulars.
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OPINION
Double Patenting
Appellant does not present any argument or evidence regarding the
Examiner’s obviousness-type double patenting rejection. Accordingly, we
summarily affirm the Examiner’s double patenting rejection.
Section 103 Rejection
A patent claim is unpatentable under 35 U.S.C. § 103 if the
differences between the claimed subject matter and the prior art are such that
the subject matter, as a whole, would have been obvious at the time the
invention was made to a person having ordinary skill in the art to which said
subject matter pertains. KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 406
(2007). The question of obviousness is resolved on the basis of underlying
factual determinations including: (1) the scope and content of the prior art;
(2) any differences between the claimed subject matter and the prior art;
(3) the level of ordinary skill in the art; and (4) where present, objective
evidence of nonobviousness. Graham v. John Deere Co., 383 U.S. 1, 17–18
(1966).
A. Claims 1, 9, and 14
Appellant argues for patentability of independent claims 1, 9, and 14
by presenting the same or similar arguments for the same or similar claim
limitations. Appeal Br. 15–20, 28, 30, 32. Accordingly, we select claim 1
as representative of this group of claims, and specifically address only this
claim in our analysis. See 37 C.F.R. § 41.37(c)(1)(iv) (2017).
Stored Gesture Patterns—Wake-Up Signal
Appellant states “Applicant can find no mention in either Marvit or
Breed of ‘a memory comprising stored gesture patterns for a plurality of
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remote devices’ wherein ‘each gesture pattern correspond[s] to a wake-up
signal for a particular remote device,’ as recited in claim 1.”
Appeal Br. 15.
We agree with the Examiner, however, that the combination of Marvit
and Breed teaches these features of claim 1. Non-Final Act. 5–8 (citing
Marvit ¶¶ 35, 122–125, Fig. 15; Breed ¶¶ 1781, 3269, 3275, 3279, 3280).
Specifically, Marvit (¶ 122, Fig. 15) teaches that in its system
“handheld device 10 controls multiple other devices through motion input of
device 10.” In other words, Marvit teaches controlling multiple devices by
inputting gestures into handheld device 10. Marvit (¶ 122) further teaches
“gesture and gesture mapping databases . . . to determine a matching gesture
and intended function based on motion tracked by a control module of the
device. The intended function may be for another device to be controlled by
[the] handheld device 10, such as laptop 222 or remote device 224.” In
addition, Marvit (¶ 122) states “[w]hile two devices controlled by handheld
device 10 are illustrated, it should be understood that particular
embodiments may include any number of devices of varying types to be
controlled by handheld device 10 through motion input as discussed above.”
The Examiner relies on Breed to teach the claimed “wake-up signal.” Non-
Final Act. 7 (citing Breed ¶ 3269).
Accordingly, Marvit (¶ 122) teaches that gestures can be mapped in a
database to particular functions of remote devices. One would understand
that the mapped function can be virtually any function the remote device is
able to perform. Breed (¶ 3269) teaches one such function is sending a
wake-up signal to a remote device.
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In view of these teachings of Marvit and Breed, we agree with the
Examiner that the argued features of claim 1 are taught by the combination
of Marvit and Breed.
Single Gesture Input to Select and Operate Remote Device
Claim 1 recites that the processor performs the following functions:
determine a remote device of the plurality of
remote devices that corresponds to the single
gesture input;
output a wake-up signal for the remote
device configured to cause the remote device to
transition to an active state; and
cause the communication interface to send
the wake-up signal to the remote device.
Appeal Br. 28 (Claims Appendix).
The Examiner finds these features taught by Marvit. Non-Final Act.
6–7 (citing Marvit ¶¶ 122–125, Fig. 15).
Appellant argues “Marvit does discuss that a user may use a gesture to
select a device and another gesture to operate the device,[] however, there is
nothing mentioned about the two operations being responsive to a ‘single
gesture input.’” Appeal Br. 16 (citing Marvit ¶ 124). Appellant further
argues “Marvit teaches away from such a feature.” Id. (citing Marvit ¶ 139).
At the outset, we note that claim 1 does not recite “to select a device.”
We interpret Appellant’s argument concerning this phrase to refer to the part
of claim 1 reciting to “determine a remote device of the plurality of remote
devices that corresponds to the single gesture input.”
Appellant’s argument assumes that Marvit is limited to using two
separate gestures, one to select, and the other to control, a remote device.
We do not agree that Marvit is so limited. For example, Marvit (¶ 135, Fig.
17) teaches “if handheld device 10 comprised a cellular phone, a user may
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move device 10 in the form of heart 250 to call the user’s girlfriend,
boyfriend or spouse.” In this instance, the moving of device 10 in the form
of a heart is a single gesture, and handheld device 10 detects and interprets
that single gesture to identify the telephone number corresponding to the
friend’s or spouse’s cellular phone. This is equivalent to the selection or
determination of one of multiple remote devices. The function or operation
performed by handheld device 10 is to call the particular cellular phone of
the friend or spouse using the identified telephone number, and the cellular
phone corresponding to the called telephone number responds by alerting the
friend or spouse of the incoming call. Thus, Marvit teaches that single
gesture input causes the user’s cellular phone to both select and operate a
particular remote device.
Although we acknowledge that we rely to an extent on inherency in
determining what Marvit teaches or suggests by inferring aspects of the
normal operation of a cellular phone, the cited parts of Marvit provide
sufficient evidence such that our findings are not established by mere
probabilities or possibilities, or the mere fact that a certain thing may result
from a given set of circumstances—they are instead the natural result
flowing from the operation of Marvit’s cellular phones as described that
would result necessarily in performance of the stated actions. See Personal
Web Techs., LLC v. Apple, Inc., 917 F.3d 1376, 1382 (Fed. Cir. 2019). Also,
the knowledge that a person of ordinary skill in the art would have had as to
operation of cellular phones is a relevant consideration in the obviousness
analysis. In re Dance, 160 F.3d 1339, 1343 (Fed. Cir. 1998) (internal
citations omitted).

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Other parts of Marvit also suggest single gesture input to select and
operate a remote device. For example, Marvit (¶ 125) states “[i]n some
embodiments different gestures may be each mapped to control a different
device.” In this circumstance, since the gestures are unique to each remote
device, one of ordinary skill would understand that separate gestures are not
necessary to select and control a remote device, and that a single gesture
input could be used instead. In this regard, we note that “a reference must be
considered not only for what it expressly teaches, but also for what it fairly
suggests.” In re Bell, 991 F.2d 781, 785 (Fed. Cir. 1993) (quoting In re
Burckel, 592 F.2d 1175, 1179 (CCPA 1979)).
Even assuming a case where gestures are not unique to each remote
device (see, e.g., Marvit ¶ 139), the remote device’s selection, like the
claimed wake-up signal, must be communicated by signaling the remote
device to be controlled so that the remote device is aware that subsequent
commands are intended for that remote device and not some other device.
In this circumstance, the signal selecting the remote device is not
appreciably different from the claimed wake-up signal, which, in any case, is
expressly taught by Breed (¶ 3269).
Appellant’s “teach away” and motivation arguments (Appeal Br. 16)
are premised on the incorrect assumption that Marvit is limited to using
separate gestures to select and control a remote device (see Marvit ¶ 135;
Fig. 17). Therefore, for the reasons explained above, we find these
arguments unpersuasive.
Appellant further argues that Breed fails to cure Marvit’s failure to
teach the use of a single gesture to both identify and control a device.
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Appeal Br. 16. Because we do not agree that Marvit suffers the deficiencies
asserted by Appellant, Breed was not needed to cure any such deficiencies.
Conclusion for Claims 1, 9, and 14
Accordingly, Appellant’s arguments are not persuasive in view of the
teachings of Marvit and Breed, and we sustain the Examiner’s rejection of
independent claims 1, 9, and 14.

B. Claims 5, 11, and 18
Claim 5 depends from claim 1 and further recites “a display operably
coupled to the processor; wherein the processor is further configured to,
based on the received gesture input: output for display on the display, a
display screen for controlling the remote device.” Appeal Br. 29 (Claims
Appendix). Claims 11 and 18 recite similar features. Id. at 31, 33.
Appellant makes similar arguments for these claims as for claim 5. Appeal
Br. 22–25. Accordingly, we group these claims together and select claim 5
as representative of the group. See 37 C.F.R. § 41.37(c)(1)(iv).
The Examiner finds that Marvit teaches these features of claim 5.
Non-Final Act. 9 (citing Marvit ¶ 35). Appellant argues Marvit requires at
least two gestures to select, output a wake-up signal, and output a display
screen for controlling the remote device, and thus does not teach the features
of claim 5. Appeal Br. 21–22.
We agree with the Examiner that Marvit teaches or suggests the
features of claim 5. Specifically, Marvit (¶ 35) teaches “[h]andheld device
10 [may include] a display 12[ and] input 14” and “[the] display 12 and
input 14 may be combined into the same component, such as a touchscreen.”
Marvit (¶ 125) further states “device 10 may display possible other devices
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for control and particular gesture(s) to utilize to indicate a user’s selection as
to which other device the user desires to presently control through device
10.”
When these Marvit teachings are considered along with the other
teachings noted for claim 1, such as using a heart gesture 250 to cause
handheld device 10 to select a telephone number and to call a friend’s or
spouse’s cellular phone, we are not persuaded the Examiner errs in finding
Marvit teaches or suggests the features of claim 5.
After making a call to establish a connection to a remote cellular
telephone, one with knowledge of how cellular phones operate would expect
the display output on Marvit’s touchscreen to include a control element that
could be used to terminate the call. In other words, Marvit’s touchscreen
could be used to control the remote cellular telephone to disconnect.
Although this part of our analysis assumes knowledge of how cellular
phones operate, the knowledge of a person of ordinary skill in the art is a
relevant consideration in the obviousness analysis. See Dance, supra.
Thus, in light of the knowledge a person of ordinary skill in the art
would have had, we agree with the Examiner that Marvit teaches or suggests
the limitations of claim 5. Accordingly, we sustain the Examiner’s rejection
of claims 5, 11, and 18.
C. Claims 8 and 13
Claim 8 depends from claim 1, and recites that “the processor is
further configured to, based on the received gesture input: output, to the
communication interface, an unlock signal configured to cause the remote
device to unlock for remote access by a user of the computing device.”
Appeal Br. 30 (Claims Appendix). Appellant argues for patentability based
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on similar features in claims 8 and 13. Appeal Br. 22–24. Accordingly, we
group the claims together and select claim 8 as representative. See
37 C.F.R. § 41.37(c)(1)(iv).
The Examiner finds that Breed teaches the features of claim 8. Non-
Final Act. 10–11 (citing Breed ¶¶ 3275, 3279, 3280). Appellant argues
Marvit and Breed do not teach or suggest selecting a device, outputting a
wake-up signal for the device, and outputting an unlock signal for that
device based on a single gesture input, as claimed. Appeal Br. 22.
We agree with the Examiner that Breed teaches or suggests the
features of claim 8. Specifically, the Examiner relies on Breed (¶ 3275) for
its teaching of an unlock signal to unlock a remote device. Id. The
Examiner also relies on Breed (¶ 3280), which teaches “[e]ach different
desired action could be enabled by the transmission of a different, unique
signal by the transmission device 865.” Id. Considering the cited Breed
teachings in conjunction with Marvit’s teaching of using a single gesture to
select a telephone number and to call a remote cellular telephone, we agree
with the Examiner that the combined references teach or suggest the features
of claim 8.
Accordingly, we sustain the Examiner’s rejection of claims 8 and 13.
D. Claim 22
Claim 22 depends from claim 1. Appeal Br. 34 (Claims Appendix).
Claim 22 mirrors claim 1, but recites that another single gesture input
controls another remote device other than the one recited in claim 1.
Specifically, claim 22 recites that another single gesture input causes the
computing device to determine (i.e., select) another remote device, to output
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a wake-up signal, and cause the wake-up signal to be sent to the other
remote device.
The Examiner finds that claim 22 is taught by the combination of
Marvit and Breed, citing the same parts of the references as for claim 1.
Non-Final Act. 12–14 (citing Marvit ¶¶ 35, 122–125, Fig. 15; Breed
¶¶ 1781, 3269, 3275, 3279, 3280).
Appellant argues Marvit does not teach or suggest the features of
claim 22 because the reference does not disclose different single gesture
inputs to determine different remote devices, and to output and send
respective wake-up signals to those remote devices. Appeal Br. 25–26.
As noted, Marvit (¶ 135, Fig. 17) teaches that a heart gesture 250 may
be used to call the cellular phone of the user’s girlfriend, boyfriend, or
spouse. Marvit (id.) also teaches a house gesture 252 may be used to call the
user’s home. Thus, Marvit teaches different gestures may be input to a
computing device and used to determine and call different remote devices.
Breed (¶ 3275) teaches an unlock signal can be used to unlock a remote
device. Putting these teachings together, we agree with the Examiner that
the combination of Marvit and Breed teaches the limitations of claim 22.
E. Remaining Claims
Appellant presents no separate arguments for the remaining dependent
claims. Thus, these claims fall for the reasons stated for their respective
independent claims. See 37 C.F.R. § 41.37(c)(1)(iv).

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CONCLUSION
We summarily affirm the Examiner’s rejection of claims 1, 3–14, 16–
19, and 22 on the ground of nonstatutory obviousness-type double patenting.
We affirm the Examiner’s rejections of claims 1, 3–14, 16–19, and 22
for obviousness under 35 U.S.C. § 103.

DECISION SUMMARY
In summary:
Claims
Rejected
35 U.S.C. §  Reference(s)/Basis Affirmed Reversed
1, 3–14,
16–19, 22
Nonstatutory
Double Patenting
1, 3–14,
16–19, 22
1, 5–9,
11–14, 18,
19, 22

103

Marvit, Breed
1, 5–9,
11–14, 18,
19, 22

3, 4, 10, 16,
17 103
Marvit, Breed,
Kryze
3, 4, 10, 16,
17

Overall
Outcome

1, 3–14, 16–19, 22

TIME PERIOD FOR RESPONSE
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