Allen, Sean D. et al.

Patent Trials and Appeals Board

Nov 30, 2020

2019005018 (P.T.A.B. Nov. 30, 2020)

UNITED STATES PATENT AND TRADEMARK OFFICE
UNITED STATES DEPARTMENT OF COMMERCE
United States Patent and Trademark Office
Address: COMMISSIONER FOR PATENTS
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Alexandria, Virginia 22313-1450
www.uspto.gov
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
11/258,247 10/24/2005 Sean D. Allen 113748-273UT1 4524
103865 7590 11/30/2020
Procopio - SPE
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EXAMINER
EDWARDS, CAROLYN R
ART UNIT PAPER NUMBER
2625
NOTIFICATION DATE DELIVERY MODE
11/30/2020 ELECTRONIC
Please find below and/or attached an Office communication concerning this application or proceeding.
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Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the
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PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte SEAN D. ALLEN and J. PETER HODDIE

Appeal 2019-005018
Application 11/258,247
Technology Center 2600
Before BRADLEY W. BAUMEISTER, JOHN A. EVANS, and
BRIAN D. RANGE, Administrative Patent Judges.
RANGE, Administrative Patent Judge.

DECISION ON APPEAL

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STATEMENT OF THE CASE
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s decision to reject claims 1–4, 7, 9–11, 27, 30, and 32–36. We
have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM IN PART. We also designate the portion of the decision
that is an affirmance as a NEW GROUND OF REJECTION under 37 C.F.R.
§ 41.50(b).

CLAIMED SUBJECT MATTER2
Appellant describes the invention as relating to an improved method
for managing a “focus” of a graphical user interface screen that is controlled
by “input units such as a keyboard, a controller, or a keypad.” Spec. 2:4–7.
Appellant states that “[t]he focus is a visual indication showing an area on a
GUI [graphical user interface] screen currently referenced by the user and is
represented, for example, by a shaded box enclosing the currently referenced
GUI object.” Id. at 1:18–21. Claims 1 and 27 and are illustrative, and we
reproduce those claims below while modifying the claims’ formatting for
readability and adding bracketed notations3 to claim 1 corresponding to
claim recitations:

1 We use the word “Appellant” to refer to “applicant” as defined in
37 C.F.R. § 1.42. Appellant identifies Sony Corporation and Kinoma, Inc. as
the real parties in interest. Appeal Br. 2.
2 In this Decision, we refer to the Final Office Action mailed June 28, 2018
(“Final Act.”); the Appeal Brief filed November 28, 2018 (“Appeal Br.”);
the Examiner’s Answer mailed April 17, 2019 (“Ans.”); and the Reply Brief
filed June 17, 2019 (“Reply Br.”).
3 We use the same reference notation as Appellant. Appeal Br. 7–8.
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1. A method comprising:
[a] managing focus in a graphical user interface using a
directional controller that allows a directional input and a
selection input comprising:
[b] first determining whether the input is
directional or selection;
[c] second determining whether there is a sibling
object of a currently focused object in a given
direction of the input when the input is directional
and a directional action is valid;
[d] transferring the focus to the sibling object when
there is a sibling object in the given direction;
[e] transferring the focus to a thumb control of a
parent object of the currently focused object when
there is no sibling object in the given direction,
[f] wherein the thumb control moves in the
given direction of the input and a display of
contents moves in proportion to the
movement of the thumb control;
[g] third determining whether the currently focused
object is a group having at least one descendant
object;
[h] transferring the focus to a first available
descendant object within the at least one
descendant object of the currently focused object
when the currently focused object is a group and
the input is selection,
[i] wherein each descendant object of the
group inherits a set of rules from the parent
object, the set of rules determining a focus
disposition of each descendant object; and
[j] selecting the currently focused object when the
currently focused object is a non-group object
including a control object and the input is
selection.
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27. A non-transitory computer storage medium storing a
computer program to manage focus in a graphical user interface
by receiving a directional input and a selection input, the
computer program comprising executable instructions that
cause a computer to:
determine whether the input is directional or selection;
determine whether there is a sibling object of a currently
focused object in a given direction of the input when the input
is directional and a directional action is valid;
transfer the focus to the sibling object when there is a
sibling object in the given direction;
transfer the focus to a thumb control of a parent object of
the currently focused object when there is no sibling object in
the given direction,
wherein the thumb control moves in the given direction
of the input and a display of contents moves in proportion to the
movement of the thumb control;
determine whether the currently focused object is a group
having at least one descendant object;
transfer the focus to a first available descendant object
within the at least one descendant object of the currently
focused object when the currently focused object is a group and
the input is selection,
wherein each descendant object of the group inherits a set
of rules from the parent object, the set of rules determining a
focus disposition of each descendant object; and
select the currently focused object when the currently
focused object is a non-group object including a control object
and the input is selection.

Appeal Br. 15, 17–18 (Claims App.). The third independent claim on appeal,
claim 33, recites an apparatus comprising, among other things, a “means for
transferring the focus to a first available descendant object within the at least
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one descendent object of the currently focused object when the currently
focused object is a group and the input is selection.” Id. at 19.

REJECTION AND REFERENCES
On appeal, the Examiner maintains (Ans. 3.) the rejection of claims 1–
4, 7, 10, 11, 27, 30, 33, 35, and 36 as obvious under pre-AIA 35 U.S.C.
§ 103(a) over Sanada, et al., US 6,614,457 B1, Sep. 2, 2003 (“Sanada”) in
view of Xu et al., US 2002/0070961 A1, June 13, 2002 (“Xu”), Kim et al.,
US 2004/0189827 A1 (“Kim”), and Volk et al., US 5,673,401 (“Volk”).
Final Act. 3.
The Examiner also maintains the rejection of claims 9, 32, and 34 as
obvious under pre-AIA 35 U.S.C. § 103(a) over Sanada, in view of Xu, Kim,
Volk, and McDade et al., US 8,185,549 B1, May 22, 2012 (“McDade”).
Final Act. 12–15.

OPINION
Claims 1–4, 7, 9–11, and 34–36. We review the appealed rejections
for error based upon the issues identified by Appellant and in light of the
arguments and evidence produced thereon. Ex parte Frye, 94 USPQ2d 1072,
1075 (BPAI 2010) (precedential), cited with approval in In re Jung, 637
F.3d 1356, 1365 (Fed. Cir. 2011) (“[I]t has long been the Board’s practice to
require an applicant to identify the alleged error in the examiner’s
rejections.”). After considering the evidence presented in this Appeal and
each of Appellant’s arguments, we are not persuaded that Appellant
identifies reversible error with respect to claim 1 and the claims depending
from claim 1.
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Appellant argues both rejections as a group and does not argue any
dependent claims separately. See Appeal Br. 7, 13. Therefore, consistent
with the provisions of 37 C.F.R. § 41.37(c)(1)(iv) (2013), we select claim 1
as representative, and claims 2–4, 7, and 9–11 stand or fall together with
claim 1.
The Examiner rejects 1 as obvious over Sanada in view of Xu, Kim,
and Volk. Final Act. 3–4. Appellant makes four arguments against the
rejection: (1) Xu fails to teach transferring to a thumb control (Appeal Br. 9),
(2) Kim does not teach transferring focus to a first available descendant
object (id. at 9–10), (3) Volk does not teach an inherited set of rules that
determine a focus disposition of each descendant object (id. at 10–11), and
(4) Sanada does not teach transferring a focus as claim 1 recites (id. at 11–
13). Each of these arguments are unpersuasive because, as explained below,
the arguments are based upon conditional method steps that are not required
in order for the prior art to teach claim 1’s recited method.
The precedential Board opinion, Ex parte Schulhauser, Appeal No.
2013-007847, 2016 WL 6277792 (PTAB April 28, 2016) (precedential), is
important in framing our analysis of claim 1. In Schulhauser, the Board
addressed, for example, claim language reciting “determining the current
activity level of the subject from the activity level data if the electrocardiac
signal data is within the threshold electrocardiac criteria.” See Schulhauser,
3. The Schulhauser examiner determined that the prior art taught the recited
method steps for the case where “electrocardiac signal data is not within the
threshold electrocardiac criteria,” and the Board held that this was sufficient
for a prima facie case of obviousness. Id. at 4. The Board held that
Appellant’s arguments related to the “determining . . . if the electrocardiac
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signal data is within the . . . criteria” step were unpersuasive because “[t]he
Examiner did not need to present evidence of the obviousness of the
remaining method steps of claim 1 that are not required to be performed
under a broadest reasonable interpretation of the claim.” Id.
Claim 1 here is similar to the claim of Ex parte Schulhauser. In
particular, the evidence before us is sufficient to support the Examiner’s
rejection because many of the steps of claim 1 are not required to be
performed in order to practice claim 1’s method. Below, we address each
step of claim 1 in order.
First, the Examiner finds that Sanada teaches claim 1, steps (a) and
(b). Final Act. 3–4 (citing Sanada Fig. 6, 1:42–50). Appellant does not
dispute that the cited art teaches managing focus in a graphical user interface
using a controller that allows directional and selection input or that the art
teaches determining whether input is directional or selection.
Claim 1’s recited method does not require steps (c) “second
determining whether there is a sibling object,” (d) “transferring the focus to
the sibling object,” or (e) “transferring the focus to a thumb control” to occur
except “when the input is directional and a directional action is valid.”
Appeal Br. 7–8 (reproducing claim 1 with labeling). The thumb control’s
properties, as defined by (f) “wherein the thumb control moves,” likewise do
not patentably distinguish claim 1’s method unless a valid directional action
is the input.
Claim 1’s method, however, may be performed under the
circumstance where the input is selection input and there is no valid
directional input. The Examiner identifies prior art that describes claim 1’s
recited method in this circumstance. See, e.g., Final Act. 3–7 (citing, for
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example, Sanada 9:62–10:37, and Fig. 6,). For this circumstance, the
Examiner adequately established a prima facie case of obviousness for
claim 1’s method even if we disregard the Examiner’s findings regarding
what the prior art allegedly would do in the event of directional input.
The Examiner finds that the prior art teaches step (g) “third
determining whether the currently focused object is a group having at least
one descendant object.” See Final Act. 4 (citing Sanada Fig. 3); see also
Final Act. 6–7 (citing Kim Figs. 5, 6, ¶ 161). Appellant disputes that Sanada
teaches step (g). Appeal Br. 11–12.
Appellant’s argument is unpersuasive because Xu suggests
determining whether the currently focused object is a group having at least
one descendant object. In particular, Xu Figures 5 and 6 suggest that Xu
permits a user to highlight, for example, the digital recorder object and then
select that object to display descendant objects such as program list, parental
lock, edit, and recording. See Xu ¶¶ 155–161. A person of skill in the art
would have combined this teaching with Xu with the teachings of Senada in
order to present the user with at least one descendant object available for
immediate selection in order to make the selection process more efficient.
Final Act. 7.
Claim 1’s recited method does not require step (h) “transferring the
focus to a first available descendant object” to occur except “when the
currently focused object is a group and the input is selection.” Appeal Br. 7–
8 (reproducing claim 1). Unless the focused object is a group and the input is
selection input, claim 1 can be performed without there being any
descendant objects at all. Claim 1’s recitation (i) regarding “rules
determining a focus disposition of each descendant object,” therefore, does
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not patentably distinguish claim 1 over prior art except where the focused
object is a group and the input is selection.
Claim 1’s method can be performed under the circumstance where the
input is selection input and the focused object is not a group. The Examiner
finds that the prior art teaches such a method. Final Act. 4. In particular, the
Examiner finds that Sanada teaches “selecting the currently focused object
when the currently focused object is a non-group object including a control
object and the input is selection.” Id. at 4 (citing Sanada 9:62–10:37, Fig. 6).
For this circumstance, the Examiner adequately established a prima facie
case of obviousness for claim 1’s method even if we disregard the
Examiner’s findings regarding how what the prior art allegedly would do in
the event of input selection where the focused object is a group.
Claim 1’s final recitation (j) requires “selecting the currently focused
object when the currently focused object is a non-group object including a
control object and the input is selection.” Appeal Br. 7–8 (reproducing claim
1). The Examiner finds that Sanada teaches this step. Final Act 4. Appellant
does not persuasively dispute this finding.
In sum, the Examiner sufficiently explains why it would have been
obvious to practice claim 1’s recited method at least in the circumstance
where the input is selection input while the currently focused object is a non-
group object including a control object. Appellant does not persuasively
present argument to the contrary. We, therefore, sustain the Examiner’s
rejection of claims 1–4, 7, 9–11, and 34–36.
In sustaining the Examiner’s rejection of these claims, we adopt all of
the Examiner’s findings and determinations except to the extent the findings
are unnecessary because they relate to conditional steps (c), (d), (e), (f), (h),
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and (i) as addressed above. Because our reasoning expands upon or differs
from the Examiner’s stated reasoning, we designate our affirmance of the
Examiner’s rejection of these claims as a new ground of rejection under
37 C.F.R. § 41.50(b).
Claims 27, 30, 32, and 33. Independent claims 27 and 33 have a
different scope than claim 1. In particular, the claims are apparatus claims
that require structure that, at a minimum, is capable of performing the
various functions the claims recite.
To resolve the issues related to these claims, we focus on the
Examiner’s findings and determinations that relate to the error Appellant
identifies. In particular, independent claims 27 and 33 each require structure
(for claim 27, a computer program, and for claim 33, a means recited with
“means for” language”) capable of transferring “the focus to a first available
descendent object within the at least one descendant object of the currently
focused object when the currently focused object is a group and the input is
selection.” Appeal Br. 18–19 (Claims App). The Examiner finds that Kim
teaches such a transfer. Final Act. 6–7 (citing Kim ¶ 161, Figs. 5, 6). The
Examiner also provides a reason for combining this teaching of Kim with
the teachings of Sanada and Xu. Id.
Appellant argues that Kim does not teach “transferring the focus to a
first available descendant object.” Appeal Br. 9–10; see also Reply Br. 5.
Appellant’s argument persuades us of error. Under a broadest reasonable
construction, the claims’ recitation of “transfer” (claim 27) or “transferring”
(claim 33) requires that the focus move away from the group object and
move to the first available descendant object. This claim interpretation is
consistent with the Specification. See Spec. 7:11–13 (“Within a particular
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window application, only a single object can be the current focus target.
When the focus is transferred to another object, the focus highlight animates
to the next object.”).
The Examiner primarily relies on Figures 5 and 6 of Kim to
demonstrate that Kim teaches transferring a focus to a descendant object.
Ans. 4–5. Kim shows in Figure 5 that a focus is on the object labeled
“Digital Recorder.” In Figure 6, the focus is still on “Digital Recorder” but is
also on the object labeled “Program List.” The figures indicate that the focus
has expanded. The Examiner does not adequately explain, however, how
Kim’s Figures 5 and 6 demonstrate a “transfer” of the focus to the object
labeled “Program List.” Rather, as Appellant argues, Figure 6’s highlighting
of both the “Digital Recorder” and “Program List” objects indicates that no
transfer occurred.
For this reason, we do not sustain the Examiner’s rejection of
independent claims 27 or 33. Because the Examiner’s treatment of
dependent claims does not cure this error, we also do not sustain the
Examiner’s rejection of claims 30 and 32.

DECISION SUMMARY
In summary:

Claims
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1–4, 7, 10,
11, 27, 30,
33, 35, 36
103 Sanada, Xu, Kim, Volk 1–4, 7, 10,
11, 35, 36
27, 30, 33
9, 32, 34 103 Sanada, Xu, Kim,
Volk, McDade
9, 34 32
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Claims
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
Overall
Outcome
1-4, 7, 9–
11, 34–36
27, 30, 32,
33

With regard to the new ground of rejection (our affirmance with
respect to claims 1–4, 7, 9–11, and 34–36). 37 C.F.R. § 41.50(b) provides
“[a] new ground of rejection pursuant to this paragraph shall not be
considered final for judicial review.” Rule 37 C.F.R. § 41.50(b) also
provides that Appellant, WITHIN TWO MONTHS FROM THE DATE OF
THE DECISION, must exercise one of the following two options with
respect to the new grounds of rejection to avoid termination of the appeal as
to the rejected claims:
(1) Reopen prosecution. Submit an appropriate amendment of
the claims so rejected or new evidence relating to the claims so
rejected, or both, and have the matter reconsidered by the
Examiner, in which event the proceeding will be remanded to
the [E]xaminer. . . .
(2) Request rehearing. Request that the proceeding be reheard
under § 41.52 by the Board upon the same record. . . .
Should Appellant elect to prosecute further before the Examiner
pursuant to 37 C.F.R. § 41.50(b)(1), in order to preserve the right to seek
review under 35 U.S.C. §§ 141 or 145 with respect to the affirmed rejections
(claims 4–8 and 19), the effective date of the affirmance is deferred until
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conclusion of the prosecution before the Examiner unless, as a mere incident
to the limited prosecution, the affirmed rejection is overcome.
If Appellant elects prosecution before the Examiner and this does not
result in allowance of the application, abandonment, or a second appeal, this
case should be returned to the Patent Trial and Appeal Board for final action
on the affirmed rejection, including any timely request for rehearing thereof.
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;
37 C.F.R. § 41.50(b)