Brian D. Amerige

Patent Trials and Appeals Board

Nov 19, 2019

14071028 - (D) (P.T.A.B. Nov. 19, 2019)

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.
14/071,028 11/04/2013 Brian D. Amerige 079894.1877 9912
91230 7590 11/19/2019
BAKER BOTTS L.L.P./FACEBOOK INC.
2001 ROSS AVENUE
SUITE 900
DALLAS, TX 75201
EXAMINER
TSAI, JAMES T
ART UNIT PAPER NUMBER
2174
NOTIFICATION DATE DELIVERY MODE
11/19/2019 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):
judy.wan@bakerbotts.com
ptomail1@bakerbotts.com
ptomail2@bakerbotts.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________________

Ex parte BRIAN D. AMERIGE
____________________

Appeal 2018-007415
Application 14/071,028
Technology Center 2100
____________________

Before JOSEPH L. DIXON, STEVEN M. AMUNDSON, and
JASON M. REPKO, Administrative Patent Judges.

DIXON, Administrative Patent Judge.

DECISION ON APPEAL

Appeal 2018-007415
Application 14/071,028

2
STATEMENT OF THE CASE
Appellant1 appeals under 35 U.S.C. § 134(a) from a rejection of
claims 1–20. We have jurisdiction under 35 U.S.C. § 6(b).
We affirm in part.
The claims are directed to a user interface (UI) of an application that
includes a nested hierarchy of views and enables a particular view of the
nested hierarchy to over-ride the default behavior of a hit-test view. (Spec.
¶ 3.) Claim 1, reproduced below, is illustrative of the claimed subject
matter:
1. A method comprising:

by a computing device, receiving a touch input within a
particular region of a display area of the computing device, the
display area presenting a user interface (UI) comprising a
plurality of views organized in a hierarchy, one or more of the
views having a gesture recognizer configured to process a touch
input detected within one or more regions of the display area
associated with each of the views, each of the views
corresponding to one or more regions of the display area, one or
more of the gesture recognizers having one or more intervention
conditions, a particular one of the views being a default view to
process the touch input;

by the computing device, determining a plurality of
eligible views from the plurality of views based at least in part
on the particular region of the touch input corresponding to the
region of the respective view;

by the computing device, evaluating the intervention
conditions of the plurality of eligible views to identify a

1 We use the word “Appellant” to refer to “[A]pplicant” as defined in
37 C.F.R. § 1.42(a) (2017). Appellant identifies the real party in interest as
Facebook, Inc. (Appeal Br. 3).
Appeal 2018-007415
Application 14/071,028

3
particular one of the eligible views from among the plurality of
eligible views to process the touch input, wherein the evaluation
of the intervention conditions is performed based on a type
associated with the touch input with regard to content displayed
in the display area and in an order in accordance to the hierarchy;

by the computing device, temporarily retargeting
processing of the touch input from the gesture recognizer of the
default view to the gesture recognizer of the identified eligible
view based on the evaluation of the intervention conditions;

by the computing device, processing the touch input
through the gesture recognizer of the identified eligible view; and

by the computing device, temporarily performing an
action with regard to the content displayed in the display area in
accordance to the gesture recognizer of the identified eligible
view instead of an action in accordance to the gesture recognizer
of the default view based on the temporary retargeting of the
processing of the touch input.

REFERENCES
The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
Gallagher et al. US 2006/0212833 A1 Sept. 21, 2006
(“Gallagher”)
Shaffer et al. US 2011/0179380 A1 July 21, 2011
(“Shaffer”)
Dale et al. US 2011/0307833 A1 Dec. 15, 2011
(“Dale”)
Braithwaite et al. US 2013/0268837 A1 Oct. 10, 2013
(“Braithwaite”)
Huang US 2014/0033129 Al Jan. 30, 2014

W3C, Document Object Model (DOM) Level 3 Events Specification Draft 06
(“DOM”), as of September 6, 2012
Appeal 2018-007415
Application 14/071,028

4

REJECTIONS
The Examiner made the following rejections:
Claims 1, 9, and 17 stand provisionally rejected on the ground of
nonstatutory double patenting as being unpatentable over claims 1, 9, and 17
of copending Application No. 13/770,506.2
Claims 1–6, 9–14, and 17–20 stand rejected under 35 U.S.C. § 103(a)
as being unpatentable over Shaffer in view of Huang, DOM, and Dale.
Claims 7 and 15 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Shaffer in view of Huang, DOM, and Dale in further view
of Gallagher.
Claims 8 and 16 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Shaffer in view of Huang, DOM, and Dale in further view
of Braithwaite.

ANALYSIS
Only those arguments actually made by Appellant have been
considered in this decision. Arguments which Appellant could have made
but chose not to make in the Briefs have not been considered and are
deemed to be waived. See 37 C.F.R. § 41.37 (c)(1)(iv).

2 We note that the patent application 13/770,506 relied upon in the rejection
has issued as US Patent No. 9,703,477 on July 11, 2017. Therefore, the
rejection was not a provisional rejection when the Notice of Appeal was
filed on September 11, 2017.
Appeal 2018-007415
Application 14/071,028

5
Obviousness-type double patenting
The Examiner sets forth the basis for the provisional nonstatutory
obviousness-type double-patenting rejection. (Final Act. 5–8.) The
Examiner did not withdraw the obviousness-type double-patenting rejection
in the Examiner’s Answer. (Ans. 3.) In the Appeal Brief, Appellant offers
to file a terminal disclaimer, but provides no argument and no terminal
disclaimer. (Appeal Br. 8.) Therefore, we summarily affirm the Examiner’s
nonstatutory obviousness-type double-patenting rejection of independent
claims 1, 9, and 17.

Obviousness3
At the outset, we note that Appellant’s Summary of the Claimed
Subject Matter in the Appeal Brief generally paraphrases paragraphs 11–17
of the Specification referring to Figure 3, but the Summary does not provide
the required correlation of the claim limitations to the subject matter in the
disclosure and drawings.4 (See 37 C.F.R. § 41.37(c)(1)(iii): “A concise
explanation of the subject matter defined in each of the rejected independent
claims, which shall refer to the specification in the Record by page and line

3 Appellant raises additional arguments. Because the identified issues are
dispositive of the appeal, we do not need to reach the additional arguments.

4 Additionally, we note that this portion of the Specification merely provides
lists of non-limiting alternative embodiments, but Appellant’s independent
claim 1 is directed to a combination of these non-limiting alternative
embodiments. We leave it to the Examiner in any further prosecution on the
merits to consider whether there is written-description support for the
individual claim limitations and the claimed invention as a whole.
Appeal 2018-007415
Application 14/071,028

6
number or by paragraph number, and to the drawing, if any, by reference
characters.”)
With respect to independent claims 1, 9, and 17, Appellant argues the
claims are similar and provides arguments to independent claim 1. (Appeal
Br. 9–10.) Therefore, we address independent claim 1 as the illustrative
claim for the group.
With respect to illustrative independent claim 1, Appellant argues that
the combination of Dale and Shaffer fails to disclose the claimed
“temporarily retargeting processing of the touch input from the gesture
recognizer of the default view to the gesture recognizer of the identified
eligible view based on the evaluation of the intervention conditions,” and
that the Dale reference merely discloses general concepts related to
hierarchical touch regions that detect a contact on a touch sensitive display
and perform a default action when a view is not configured to process a
contact. (Appeal Br. 10; see also Reply Br. 2 (citing Dale Abstract, ¶¶ 59,
65).)
Additionally, Appellant argues that the cited portions of the Shaffer
reference do not disclose that setting of the skip property is temporary or
modifiable and the introduction of the teachings of Dale do not disclose that
the configuration of a view is modifiable. (Appeal Br. 10.) Appellant
further contends that:
the Examiner appears to be equating the default action of Dale is
the new target with a default view, which is clearly not the case.
(See Examiner’s Answer at page 16). As described in the
Specification, a view is associated with a particular area of a
display and has an associated gesture recognizer. (See
Specification at [0011]). A default action of Dale is not
Appeal 2018-007415
Application 14/071,028

7
associated with a particular area of the display nor is the default
action associated with a gesture recognizer.

(Reply Br. 2.)
We agree with Appellant that the Dale reference discloses general
concepts related to hierarchical touch regions that detect a contact on a touch
sensitive display and perform a default action when a view is not configured
to process the contact. (Appeal Br. 10.) We further find that the Dale
reference merely checks whether there is a gesture recognizer at the specific
level in the hierarchical view structure 408–1 through 408–N. If there is a
gesture recognizer at the specific level in the view hierarchy, then the
contact is processed in the manner in the gesture recognizer, but if there is
not a gesture recognizer at the specific level in the view hierarchy, then the
Dale reference discloses going to the next level in the hierarchy to determine
if there is a gesture recognizer at the next level and uses that gesture
recognizer to process the contact. (See generally Dale ¶¶ 59–65.)
Therefore, Dale does not teach or suggest target processing at a
specific level in a hierarchical view structure because there is no gesture
recognizer at a specific level in the hierarchy. Therefore, there is no
“retargeting” as claimed in “temporarily retargeting processing of the touch
input from the gesture recognizer of the default view to the gesture
recognizer of the identified eligible view based on the evaluation of the
intervention conditions.”
As a result, we find that Appellant has identified error in the
Examiner’s obviousness rejection of illustrative independent claim 1, and we
cannot sustain the rejection of claim 1 and dependent claims 2–6. Because
independent claims 9 and 17 contain similar claim limitations, we also
Appeal 2018-007415
Application 14/071,028

8
cannot sustain the obviousness rejection of independent claims 9 and 17 and
dependent claims 10–14 and 18–20.
Furthermore, the Examiner has not identified how the additional prior-
art references relied upon for dependent claims 7, 8, 15, and 16 remedy the
noted deficiency above. As a result, we cannot sustain the obviousness
rejections of claims 7, 8, 15, and 16.

CONCLUSIONS
The Examiner did not err in rejecting claims 1, 9, and 17 based upon
nonstatutory obviousness-type double patenting, but the Examiner erred in
rejecting claims 1–20 based upon obviousness under pre-AIA 35 U.S.C.
§ 103(a).

DECISION SUMMARY

Claims
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1, 9, 17 Nonstatutory
Obviousness-type
double patenting
1, 9, 17
1–6, 9–14,
17–20
103 Shaffer, Huang, DOM,
Dale
1–6, 9–14, 17–
20
7, 15 103 Shaffer, Huang, DOM,
Dale, Gallagher
7, 15
8, 16 103 Shaffer, Huang, DOM,
Dale, Braithwaite
8, 16
Overall
Outcome
1, 9, 17 2–8, 10–16,
18–20

Appeal 2018-007415
Application 14/071,028

9
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