Toyota Motor Engineering & Manufacturing North America, Inc.

Patent Trials and Appeals Board

Mar 25, 2022

2021004960 (P.T.A.B. Mar. 25, 2022)

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. 15/421,912 02/01/2017 Carlo Cruz 22562-2242/2016-529 6412 96411 7590 03/25/2022 Dinsmore & Shohl LLP 255 East Fifth Street, Suite 1900 Cincinnati, OH 45202 EXAMINER ZAMAN, SADARUZ ART UNIT PAPER NUMBER 3715 NOTIFICATION DATE DELIVERY MODE 03/25/2022 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): CincyPAIR@dinsmore.com elise.merkel@dinsmore.com jennifer.baker@dinsmore.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte CARLO CRUZ Appeal 2021-004960 Application 15/421,912 Technology Center 3700 Before DANIEL S. SONG, CARL M. DEFRANCO, and LEE L. STEPINA, Administrative Patent Judges. SONG, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Pursuant to 35 U.S.C. § 134(a), the Appellant1 appeals from the Examiner’s decision to reject claims 1-5 and 8-20. We have jurisdiction under 35 U.S.C. § 6(b). We REVERSE. 1 We use the word “Appellant” to refer to “applicant” as defined in 37 C.F.R. § 1.42(a). The Appellant identifies the real party in interest as Toyota Motor Engineering & Manufacturing North America, Inc. Appeal Br. 2. Appeal 2021-004960 Application 15/421,912 2 CLAIMED SUBJECT MATTER The claims are directed to devices and methods for providing tactile feedback. Claim 1, reproduced below, is illustrative of the claimed subject matter: 1. A device for providing a tactile feedback, the device comprising: an imaging device configured to capture an image of a face of a subject; a microphone configured to output an electrical signal indicative of a sound of the subject; a tactile feedback device configured to output tactile feedback; and a controller communicatively coupled to the imaging device and the tactile feedback device, the controller comprising at least one processor and at least one memory storing computer readable and executable instructions that, when executed by the processor, causes the controller to: process the image of the face to determine one or more facial expression parameters; determine a level of smiling of the subject based on the one or more facial expression parameters; determine a volume of the sound of the subject based on the electrical signal; determine a tactile feedback intensity of the tactile feedback device based on the level of smiling of the subject and the volume of the sound of the subject; and control the tactile feedback device to provide the tactile feedback having the determined tactile feedback intensity, wherein the tactile feedback intensity increases as the level of smiling increases. Appeal Br. 26 (Claims App.). REFERENCES The prior art relied upon by the Examiner is: Appeal 2021-004960 Application 15/421,912 3 Name Reference Date Seim US 2015/0310762 A1 Oct. 29, 2015 Hwang US 2016/0048202 A1 Feb. 18, 2016 Wexler US 2017/0061201 A1 Mar. 2, 2017 Lewbel US 9,760,241 B1 Sept. 12, 2017 REJECTIONS 1. Claims 1-5, 8-11, and 13-19 are rejected under 35 U.S.C. § 1032 as unpatentable over Wexler in view of Hwang and Lewbel. Final Act. 3. 2. Claims 12 and 20 are rejected under 35 U.S.C. § 103 as being unpatentable over Wexler in view of Hwang and Seim. Final Act. 12. OPINION Rejection 1: Claims 1-5, 8-11, and 13-19 The Examiner rejects claims 1-5, 8-11, and 13-19 as being unpatentable over Wexler in view of Hwang and Lewbel. Final Act. 3. As to independent claim 1, the Examiner finds that Wexler discloses a tactile feedback device substantially as claimed, but fails to disclose “a controller to determine a feedback intensity of the feedback device based on the level of electrical signal from a microphone.” Final Act. 4. The Examiner also finds that Wexler fails to disclose “determining . . . a volume of the sound of the subject based on the electrical signal and a tactile feedback intensity of the device based on the level of the facial expression of the subject and the volume of the sound of the subject.” Final Act. 5. 2 The heading for this rejection in the Final Office Action erroneously sets forth “35 U.S.C. 102(a) (1) and 35 U.S.C. 102(a) (2)” as the basis for the obviousness rejection. Final Act. 3. The body of the rejection makes clear that the basis is 35 U.S.C. § 103. See id. at 3-5. Appeal 2021-004960 Application 15/421,912 4 The Examiner relies on Hwang for disclosing “a feedback-outputting unit with microphone system,” and on Lewbel for disclosing “volume of the sound of a subject depends on the electrical signal and a tactile feedback intensity of the device is based on the level of the volume of the sound of the subject.” Final Act. 4-5 (citing Hwang ¶¶ 22, 31, 32, 39; Lewbel, col. 2, ll. 23-42). The Examiner concludes that it would have been obvious to one of ordinary skill in the art to incorporate volume of the sound of the subject based on the electrical signal and a tactile feedback intensity of the device based on the level of the facial expression of the subject and the volume of the sound of the subject as taught by Lewbel, into the tactile feedback device of Wexler combination, in order to include additional facial expression depended response. Final Act. 5. The Appellant argues that references do not teach or fairly suggest causing a controller to “determine a volume of the sound of the subject based on the electrical signal; determine a tactile feedback intensity of the tactile feedback device based on the level of smiling of the subject and the volume of the sound of the subject.” Appeal Br. 16; see also id. at 19. Specifically, the Appellant argues that the cited portions of Lewbel “merely describe providing haptic, tactile, or audible outputs that vary according to an amount of force applied by a user touch sensor associated with a display.” Appeal Br. 16 (citing Lewbel, col. 2, ll. 23-42); see also id. at 18 (citing Lewbel, col. 8, ll. 47-62). As such, the Appellant argues that “the sound output in Lewbel is merely determined based on the level of the force applied by a user or the feature displayed on the device, and the sound output is not used to determine a tactile output intensity.” Appeal Br. 19 (citing Lewbel, col. 2, ll. 30-41). Appeal 2021-004960 Application 15/421,912 5 The Examiner responds, explaining that “Lewbel teaches volume intensity of the sound of a subject depending on the electrical signal,” and discloses “a tactile output and in some instances variations of sound levels i.e. volume intensity or level is provided to a user.” Ans. 6 (citing Lewbel, col. 2, ll. 23-42). The Examiner further explains that “[t]he touch screen and force inputs are . . . generating electrical signals as a basis for sound output.” Ans. 7; see also Ans. 8 (Lewbel “produces a sound related to the feature and provide tactile output, such as a localized vibration output from a first intensity or from a second intensity input depending on the signal strength as required by sound volume output recited in claim under consideration.”). We agree with the Appellant that the rejection is improper. Although not entirely clear from the rejection, the Examiner appears to misunderstand the claim and/or Lewbel. Claim 1 makes clear that the controller determines the volume of the sound from the subject based on the electrical signal outputted from the microphone. The claim further makes clear that the tactile feedback intensity is determined based not only on the level of smiling of the subject, but also on the determined volume of sound of the subject. Thus, claim 1 requires the use of sound as input for determining the tactile feedback output. In contrast, Lewbel discloses that different sound output is provided based on the tactile input, i.e. level of force applied by touch. Lewbel, col. 2, ll. 23-42 (“these different output types based on detected force may also include variations in sound or visual feedback provided to the user. . . . If the user touches the feature with a different level of force, the feature may be animated in a different manner, a different sound may be produced, and Appeal 2021-004960 Application 15/421,912 6 tactile output of a different level of intensity may be generated.”) (emphasis added). It appears that the rejection conflates variable production of sound as disclosed in Lewbel, with sensing different levels of sound from a subject to give differing tactile feedback, which is required by claim 1. The Examiner further responds that Wexler “is consistent in citing that the volume output to sound recording varies and depends on input changes.” Ans. 7 (emphasis added). However, this response appears to further indicate the Examiner’s misunderstanding of the claim. Therefore, because the Examiner’s rejection of claim 1 is based on a fact finding that is inadequately supported, we reverse this rejection of claim 1. The Appellant’s further arguments alleging inconsistent treatment of “the subject” as to Hwang versus Lewbel, and arguments based on changing the principle of operation of Wexler, are moot. Appeal Br. 20; Reply Br. 4. The Appellant also relies on the same arguments in support of patentability of independent claims 9 and 15. Appeal Br. 20. Indeed, because the rejection of claims 9 and 15 are also based on the same inadequate findings, we likewise reverse the rejection of these claims. The Appellant further relies on dependency on claims 1, 9, or 15, for patentability of the remaining rejected claims 2-5, 8, 10, 11, 13, 14, and 16- 19. Appeal Br. 20. Thus, we reverse the rejection of these dependent claims as well. The Appellant’s separate arguments directed to dependent claims 2, 10, 17, and 19 are moot. Appeal Br. 22-24. Rejection 2: Claims 12 and 20 The Appellant relies on dependency on claims 9 or 15 in support of patentability of claims 12 and 20, correctly noting that the Examiner’s Appeal 2021-004960 Application 15/421,912 7 application of Seim does not remedy the deficiencies of the combination of Wexler in view of Hwang and Seim. Appeal Br. 21. Thus, we reverse this rejection. CONCLUSION The Examiner’s rejections are reversed. DECISION SUMMARY In summary: Claims Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 1-5, 8-11, 13-19 103 Wexler, Hwang, Lewbel 1-5, 8-11, 13-19 12, 20 103 Wexler, Hwang, Seim 12, 20 Overall Outcome 1-5, 8-20 REVERSED