Case 2:21-cv-00040-JRG Document 157-11 Filed 12/16/21 Page 1 of 14 PageID #: 6687
`Case 2:21-cv-00040-JRG Document 157-11 Filed 12/16/21 Page 1 of 14 PagelD #: 6687
`
`EXHIBIT 11
`EXHIBIT 11
`
`

`

`Case 2:21-cv-00040-JRG Document 157-11 Filed 12/16/21 Page 2 of 14 PageID #: 6688
`
`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.
`
`90/014,903
`
`11/11/2021
`
`8878949
`
`752891.00085
`
`2469
`
`12/02/2021
`7590
`184036
`Williams Simons & Landis PLLC/ GTP
`The Littlefield Building
`60 I Congress Ave., Suite 600
`Austin, TX 7870 I
`
`EXAMINER
`
`MENEFEE, JAMES A
`
`ART UNIT
`
`3992
`
`MAIL DATE
`
`12/02/2021
`
`PAPER NUMBER
`
`DELIVERY MODE
`
`PAPER
`
`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.
`
`PTOL-90A (Rev. 04/07)
`
`

`

`Case 2:21-cv-00040-JRG Document 157-11 Filed 12/16/21 Page 3 of 14 PageID #: 6689
`
`Order Granting Request For
`Ex Parle Reexamination
`
`Control No.
`
`90/014,903
`
`Examiner
`
`Patent Under Reexamination
`
`8878949
`
`Art Unit
`
`AIA (FITF) Status
`
`James Menefee
`
`3992
`
`No
`
`--The MAILING DA TE of this communication appears on the cover sheet with the correspondence address--
`
`The request for ex parte reexamination filed 11/11/2021 has been considered and a determination has
`been made. An identification of the claims, the references relied upon, and the rationale supporting the
`determination are attached.
`
`Attachments: a)O PTO-892,
`
`b)0
`
`PTO/SB/08,
`
`c)O Other:
`
`1. 0
`
`The request for ex parte reexamination is GRANTED.
`
`RESPONSE TIMES ARE SET AS FOLLOWS:
`
`For Patent Owner's Statement (Optional): TWO MONTHS from the mailing date of this communication
`(37 CFR 1.530 (b)). EXTENSIONS OF TIME ARE GOVERNED BY 37 CFR 1.550(c).
`
`For Requester's Reply (optional): TWO MONTHS from the date of service of any timely filed
`Patent Owner's Statement (37 CFR 1.535). NO EXTENSION OF THIS TIME PERIOD IS PERMITTED.
`If Patent Owner does not file a timely statement under 37 CFR 1.530(b ), then no reply by requester
`is permitted.
`
`cc:Requester ( if third party requester )
`U.S. Patent and Trademark Office
`PTOL-471G(Rev. 01-13)
`
`Office Action In Ex Parte Reexamination
`
`Part of Paper No. 20211116
`
`

`

`Case 2:21-cv-00040-JRG Document 157-11 Filed 12/16/21 Page 4 of 14 PageID #: 6690
`
`Application/Control Number: 90/014,903
`Art Unit: 3992
`
`Page 2
`
`ORDER GRANTING REEXAMINATION REQUEST
`
`A substantial new question ofpatentability ("SNQ") affecting claims 1-18 of U.S. Patent
`
`No. 8,878,949 ("the '949 patent") is raised by the reexamination request filed 11/11/2021
`
`("Request"). The '949 patent was filed before March 16, 2013, and is being examined under the
`
`pre-AIA first to invent regime.
`
`Based on the specific reference to earlier applications and the O day patent tenn
`
`adjustment on the face of the patent, the '949 patent is expired. This proceeding therefore will
`
`use the ordinary and customary meaning claim construction standard set forth in Phillips v. A WH
`
`Corp., 415 F.3d 1303 (Fed. Cir. 2005). MPEP 2258 I.G. Furthermore, no amendments other than
`
`the cancellation of claims will be permitted in this proceeding. 37 CFR 1.530G).
`
`References Cited as Raising SNQs
`
`U.S. Patent 6,115,482 to Sears et al. ("Sears")
`
`U.S. Patent 6,198,485 to Mack et al. ("Mack")
`
`Prosecution History
`
`The '949 patent is drawn to a camera that is configured to automatically take pictures
`
`when a person makes a gesture, such as raising one's right hand. There is a camera for taking the
`
`picture, and there is a separate camera or sensor in the same housing for sensing the gestures.
`
`The '949 patent was filed on 8/7/2013 as application 13/961,452 and is part ofa chain of several
`
`continuation application. In the first Office action on the merits the claims were rejected on
`
`several different grounds of double patenting, and also as anticipated or obvious over a reference
`
`to Sengupta. In a response filed 3/27/2014 the applicant amended some claims, filed a terminal
`
`

`

`Case 2:21-cv-00040-JRG Document 157-11 Filed 12/16/21 Page 5 of 14 PageID #: 6691
`
`Application/Control Number: 90/014,903
`Art Unit: 3992
`
`Page 3
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`disclaimer to overcome the double patenting rejections, and argued that Sengupta did not show
`
`that the camera and sensor be disposed in the same housing. The tenninal disclaimers were not
`
`approved as they identified a party who is not the applicant, and in a final rejection mailed
`
`5/14/2014 the examiner maintained the double patenting and art rejections, arguing that the
`
`distinguishing features were not claimed.
`
`On 8/14/2014 applicant filed a request for continued examination with new terminal
`
`disclaimers and claim amendments. The terminal disclaimers were again not approved for the
`
`same reason. In a non-final action mailed 8/26/2014 the examiner maintained the double
`
`patenting rejections but withdrew the art rejections without comment. Applicant filed new
`
`terminal disclaimers on 8/26/2014 that were subsequently approved. A notice of allowance was
`
`mailed 9/18/2014 without reasons for allowance.
`
`Turning back to the 8/14/2014 amendments, applicant added the requirement that the
`
`housing/device encompasses the electro-optic sensor and digital camera, that the processing unit
`
`is adapted to determine a gesture has been performed in the sensor field of view based on the
`
`sensor output, and that the gesture corresponds to an image capture command that causes the
`
`digital camera to store an image to memory. Applicant argued that Sengupta hands off between
`
`separate cameras and therefore lacked a housing encompassing the sensor and camera. Applicant
`
`also argued that Sengupta merely reports the location of moving objects and does not determine
`
`that a gesture corresponds to an image capture command. Applicant stated that the examiner had
`
`agreed in a 8/7/2014 interview that these changes would overcome the rejections based on
`
`Sengupta. Accordingly, it is apparent the claims were allowable over the art due to these features
`
`that were lacking in Sengupta. These technical teachings were missing from the a1i during the
`
`

`

`Case 2:21-cv-00040-JRG Document 157-11 Filed 12/16/21 Page 6 of 14 PageID #: 6692
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`Application/Control Number: 90/014,903
`Art Unit: 3992
`
`Page4
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`original prosecution, and art showing such features would have been important to a reasonable
`
`examiner in determining the patentability of the claims.
`
`The '949 patent is also subject to currently pending IPRs IPR2021-00921 and IPR2022-
`
`00092. As of this writing a decision on institution has not yet been made in those proceedings
`
`and the petitioners used different art than that relied upon herein. These proceedings therefore
`
`are not a final decision or concluded review affecting the SNQ analysis.
`
`The '949 patent has also been subject to a number of litigation proceedings, as set forth in
`
`the litigation search in the file and also in the Request. As far as the examiner can tell, none of
`
`these proceedings resulted in any final determination as to the validity of any of the patent
`
`claims. These proceedings therefore do not affect the SNQ analysis.
`
`Proposed SNQs
`
`Requester proposes the following SNQs:
`
`1. Claims 1-18 are obvious over Sears.
`
`2. Claim 11 is obvious over Sears in view of Mack.
`
`As described in the Request, Sears is a print reading device with voice output, so that
`
`people with impaired vision or difficulty reading may have words read to them by a computer.
`
`The user performs hand gestures that perform various commands on the system, such as to begin
`
`reading an entire page, speeding up or slowing down, stopping, etc. There is a camera that reads
`
`the text and also a sensor that interprets the gestures, and these may be in the same housing. This,
`
`a single housing including a camera that takes pictures and a sensor that interprets gestures is one
`
`of the features that was missing during the original prosecution. The text is further stored in
`
`memory so that it can be OCR' d, therefore the gestures might be considered to cause an image
`
`

`

`Case 2:21-cv-00040-JRG Document 157-11 Filed 12/16/21 Page 7 of 14 PageID #: 6693
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`Application/Control Number: 90/014,903
`Art Unit: 3992
`
`Pages
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`capture command to store an image in memory. This is another feature that was missing during
`
`the original prosecution.
`
`Sears therefore provides a new technical teaching that was not present during the original
`
`prosecution, and a reasonable examiner would have found the reference important in considering
`
`the patentability of the claims. A SNQ is raised by Sears alone. Mack is additionally provided to
`
`show that it was known for an electro-optic sensor to have first and second sensors fixed relative
`
`to a camera, as an alternative rejection of claim 11. The combination of Sears and Mack
`
`therefore provides a new technical teaching for the same reasons as Sears alone, and the
`
`combination would have been important to a reasonable examiner in considering the
`
`patentability of claim 11. A SNQ is raised by the combination of Sears and Mack.
`
`The teachings of these references as discussed in the Request are not cumulative to any
`
`written discussion on the record of the teachings of the prior art, were not previously considered
`
`nor addressed during a prior examination, and the same question was not the subject of a final
`
`holding of invalidity in the Federal Courts.
`
`Conclusion
`
`Patent owner is reminded of the continuing responsibility under 37 CFR l.565(a) to
`
`apprise the Office of any prior or concurrent proceeding involving the '949 patent. See MPEP § §
`
`2207, 2282 & 2286. Requester may also notify the Office of such proceedings.
`
`All correspondence relating to this ex parte reexam proceeding should be directed as follows:
`
`By U.S. Postal Service Mail to:
`
`Mail Stop Ex Parte Reexam
`ATTN: Central Reexamination Unit
`Commissioner for Patents
`
`

`

`Case 2:21-cv-00040-JRG Document 157-11 Filed 12/16/21 Page 8 of 14 PageID #: 6694
`
`Page 6
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`Application/Control Number: 90/014,903
`Art Unit: 3992
`
`P.O. Box 1450
`Alexandria, VA 22313-1450
`
`ByFAXto:
`
`(571)273-9900
`Central Reexamination Unit
`
`By hand to: Customer Service Window
`Randolph Building
`401 Dulany St.
`Alexandria, VA 22314
`
`Registered users ofEFS-Web may alternatively submit correspondence via the electronic
`
`filing system at https://efs.uspto.gov/efile/myportal/efs-registered
`
`Any inquiry concerning this communication or as to the status of this proceeding, should
`
`be directed to the Central Reexamination Unit at telephone number (571) 272-7705.
`
`Signed:
`
`/JAMES A MENEFEE/
`Reexamination Specialist, Art Unit 3992
`(571) 272-1944
`December 1, 2021
`
`Conferees:
`
`/LINH M NGUYEN/
`Primary Examiner, Art Unit 3992
`
`/HETUL B PATEL/
`Supervisory Patent Examiner, Art Unit 3992
`
`

`

`Case 2:21-cv-00040-JRG Document 157-11 Filed 12/16/21 Page 9 of 14 PageID #: 6695
`PTO/SB/0Ba (01-10)
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`3961452
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`INFORMATION DISCLOSURE
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`First Named Inventor 1 fnmothy R. Pryor
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`013-08-07
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`999-11-09
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`.iebermann
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`115482
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`'000-09-05
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`,ears et al.
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`0622015
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`2003-09-16
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`Himmel et al.
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`,434403
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`~002-08-13
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`l\usems et al.
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`5594469
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`997-01-14
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`creeman et al.
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`l144366
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`'000-11-07
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`~umazaki et al.
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`0256033
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`001-07-03
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`Nguyen
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`,454043
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`995-09-26
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`reeman
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`Case 2:21-cv-00040-JRG Document 157-11 Filed 12/16/21 Page 10 of 14 PageID #: 6696
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`13961452
`Application Number
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`,._,._I .._ ...,.._ ,._
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`INFORMATION DISCLOSURE
`STATEMENT BY APPLICANT
`( Not for submission under 37 CFR 1.99)
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`Filing Date
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`2013-08-07
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`First Named Inventor l Timothy R. Pryor
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`Art Unit
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`Examiner Name
`
`I
`Attorney Docket Number
`
`9
`
`4988981
`
`1991-01-29
`
`"Immerman et al.
`
`10
`
`147678
`
`2000-11-14
`
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`
`11
`
`,748326
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`"hompson-Bell et al.
`
`12
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`262767
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`2001-07-17
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`13
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`,004-01-13
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`Chung et al.
`
`14
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`534921
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`h996-07-09
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`13awanobori
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`15
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`249053
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`993-09-28
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`!Jain
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`16
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`3198485
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`2001-03-06
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`Vlack et al.
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`17
`
`475427.
`
`1995-12-12
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`f-lorowilz
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`Case 2:21-cv-00040-JRG Document 157-11 Filed 12/16/21 Page 11 of 14 PageID #: 6697
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`INFORMATION DISCLOSURE
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`2013-08-07
`Filing Date
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`175288
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`1997-10-30
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`T5
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`1
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`2
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`i11ICROSOFT, Microsoft Announces Release of Windows CE 2.0 - Stories, Sept. 29, 1997.
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`V. PAVLOVIC et al., Visual Interpretation of Hand Gestures for Human-Computer Interaction: A Review, 19 IEEE
`RANSACTIONS ON PATTERN ANALYSIS AND MACHINE INTELLIGENCE 677 (1997).
`
`3
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`3ony DXC-LS1 Brochure, 1997.
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`4
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`lushnag Bibliographic Summary, Canadian Patents Database, accessed August 2021.
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`Examiner Signature 11
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`/JAMES A MENEFEE/
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`11/17/2021
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`I Date Considered
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`Case 2:21-cv-00040-JRG Document 157-11 Filed 12/16/21 Page 12 of 14 PageID #: 6698
`13961452
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`Filing Date
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`First Named Inventor l Timothy R. Pryor
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`2013-08-07
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`Case 2:21-cv-00040-JRG Document 157-11 Filed 12/16/21 Page 13 of 14 PageID #: 6699
`13961452
`Application Number
`
`INFORMATION DISCLOSURE
`STATEMENT BY APPLICANT
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`Filing Date
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`First Named Inventor I Timothy R. Pryor
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`2013-08-07
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`Name/Print
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`/Joseph E. Palys/
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`Joseph E. Palys
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`Date (YYYY-MM-DD)
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`2021-11-11
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`Registration Number
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`~6508
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`Case 2:21-cv-00040-JRG Document 157-11 Filed 12/16/21 Page 14 of 14 PageID #: 6700
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`negotiations.
`
`A record in this system of records may be disclosed, as a routine use, to a Member of Congress submitting a
`request involving an individual, to whom the record pertains, when the individual has requested assistance from the
`Member with respect to the subject matter of the record.
`
`A record in this system of records may be disclosed, as a routine use, to a contractor of the Agency having need for
`the information in order to perform a contract. Recipients of information shall be required to comply with the
`requirements of the Privacy Act of 1974, as amended, pursuant to 5 U.S.C. 552a(m).
`
`A record related to an International Application filed under the Patent Cooperation Treaty in this system of records
`may be disclosed, as a routine use, to the International Bureau of the World Intellectual Property Organization, pursuant
`to the Patent Cooperation Treaty.
`
`A record in this system of records may be disclosed, as a routine use, to another federal agency for purposes of
`National Security review (35 U.S.C. 181) and for review pursuant to the Atomic Energy Act (42 U.S.C. 218(c)).
`
`A record from this system of records may be disclosed, as a routine use, to the Administrator, General Services, or
`his/her designee, during an inspection of records conducted by GSA as part of that agency's responsibility to
`recommend improvements in records management practices and programs, under authority of 44 U.S.C. 2904 and
`2906. Such disclosure shall be made in accordance with the GSA regulations governing inspection of records for this
`purpose, and any other relevant (i.e., GSA or Commerce) directive. Such disclosure shall not be used to make
`determinations about individuals.
`
`8.
`
`A record from this system of records may be disclosed, as a routine use, to the public after either publication of
`the application pursuant to 35 U.S.C. 122(b) or issuance of a patent pursuant to 35 U.S.C. 151. Further, a record
`may be disclosed, subject to the limitations of 37 CFR 1.14, as a routine use, to the public if the record was filed in
`an application which became abandoned or in which the proceedings were terminated and which application is
`referenced by either a published application, an application open to public inspections or an issued patent.
`
`9.
`
`A record from this system of records may be disclosed, as a routine use, to a Federal, State, or local law
`enforcement agency, if the USPTO becomes aware of a violation or potential violation of law or regulation.
`
`EFSWeb2.1.17
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