Ex Parte Grossman et al

Patent Trial and Appeal Board

Aug 14, 2017

13274253 (P.T.A.B. Aug. 14, 2017)

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.
13/274,253 10/14/2011 Tovi GROSSMAN AUTO/1223 1003
107456 7590 08/16/2017
Artegis Law Group, LLP
John Carey
7710 Cherry Park Drive Suite T #104
Houston, TX 77095
EXAMINER
NICHOLAS, WENDY K
ART UNIT PAPER NUMBER
2174
NOTIFICATION DATE DELIVERY MODE
08/16/2017 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):
algdocketing @ artegislaw. com
kcruz @ artegislaw.com
rsmith @ artegislaw.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte TOVI GROSSMAN, GEORGE FITZMAURICE,
XING-DONG YANG, and POURANG POLAD IRANI
Appeal 2017-000303
Application 13/274,2531
Technology Center 2100
Before KRISTEN L. DROESCH, JOHN P. PINKERTON, and
MELISSA A. HAAPALA, Administrative Patent Judges.
PINKERTON, Administrative Patent Judge.
DECISION ON APPEAL
Appellants appeal under 35 U.S.C. § 134(a) from the Examiner’s
Final Rejection of claims 1, 3, 8, 10, 15, 17, and 21—23, which constitute all
of the claims pending in the application. Claims 2, 4, 7, 9, 11, 14, 16, and 20
are canceled.2 We have jurisdiction under 35 U.S.C. § 6(b).
We affirm.
1 Appellants identify Autodesk, Inc. as the real party in interest. App. Br. 3.
2 As noted below, in the Advisory Action, the Examiner withdrew the
indefiniteness rejection. See Ans. 2. Therefore, claims 5, 6, 12, 13, 18, and
19 stand objected to as depending from rejected independent claims. See
Final Act. 3.
Appeal 2017-000303
Application 13/274,253
STATEMENT OF THE CASE
Introduction
Appellants describe the disclosed and claimed invention as follows:
Systems and methods for providing graphical user
interface elements optimized for touch-based input in connection
with an application that is designed for conventional input
received from a keyboard and a mouse. The touch-based
graphical user interface elements are displayed when the
computer system detects that a user is about to switch from
conventional input devices to touch-sensitive input devices. The
touch-based graphical user interface elements are hidden when
the user provides input with the conventional input devices such
that the touch-based graphical user interface elements do not
distract from the applications normal operation. The display
device includes a sensing capability that enables the computer
system to detect when an object, such as a user's finger or a
stylus, is proximate to, but not in contact with, the display device.
Abstract.3
Claim 1 is representative of the subject matter on appeal and
reproduced below (with the disputed limitations emphasized)'.
1. A computer-implemented method for displaying one or
more touch-based graphical user interface (GUI) elements, the
method comprising:
executing an application to cause a GUI to be displayed on
a touch screen display associated with a computing device,
wherein the GUI includes a plurality of conventional GUI
elements configured to interact with at least one of a keyboard
and a mouse device;
3 Our Decision refers to the Final Action mailed Sept. 16, 2015 (“Final
Act.”); Appellants’ Appeal Brief filed Mar. 24, 2016 (“App. Br.”); the
Examiner’s Answer mailed July 29, 2016 (“Ans.”); Appellants’ Reply Brief
filed Sept. 29, 2016 (“Reply Br.”); and, the original Specification filed
Oct. 14, 2011 (“Spec.”).
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Application 13/274,253
detecting that an object is located proximate to, but not yet
in contact with, a surface of the touch screen display,
calculating a motion vector associated with the object that
indicates a trajectory of the object relative to the surface of the
touch screen display,
calculating a target location of an intersection point of the
motion vector with the surface',
displaying, based on the target location, the one or more
touch-based GUI elements on top of the plurality of conventional
GUI elements;
after displaying the one or more touch-based GUI
elements, determining that a user intends to provide input to the
computing device via at least one of the keyboard and the mouse
device; and
in response, hiding the one or more touch-based GUI
elements,
wherein each touch-based GUI element included in the
one or more touch-based GUI elements is configured to perform
a function associated with a different conventional GUI element
included in the plurality of conventional GUI elements.
App. Br. 16 (Claims App’x).
Rejection on Appeal4
Claims 1, 3, 8, 10, 15, 17, and 21—23 stand rejected under 35 U.S.C.
§ 103(a) as being unpatentable over Fox et al. (US 2006/0209016 Al;
published Sept. 21, 2006) (“Fox”) and Jobs et al. (US 2008/0174570 Al;
published July 24, 2008) (“Jobs”).
4 The Examiner’s rejection of claims 1, 3, 5, 6, 8, 10, 12, 13, 15, 17—19, and
21—23 for indefiniteness under 35 U.S.C. § 112, second paragraph, was
withdrawn. Ans. 2 (citing Advisory Action dated Dec. 15, 2015).
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Application 13/274,253
ANALYSIS
We have reviewed the Examiner’s rejections in light of Appellants’
arguments in the Briefs and are not persuaded the Examiner erred. Unless
otherwise noted, we adopt as our own the findings and reasons set forth by
the Examiner in the Office Action from which this appeal is taken (Final
Act. 5—9) and in the Examiner’s Answer (Ans. 2—6), and we concur with the
conclusions reached by the Examiner. For emphasis, we consider and
highlight specific arguments as presented in the Briefs.
Rejection of Claims 1, 3, 8, 10, 15, 17, and 21—23 under § 103(a)5
The Examiner relies on Jobs as teaching or suggesting the “detecting,”
“calculating a motion vector,” and “calculating a target location” limitations
of claim 1. See Final Act. 6—7; Ans. 3—6. Appellants contend that the
Examiner has failed to show that Jobs teaches or suggests these limitations.
App. Br. 11—14; Reply Br. 3—7. We consider each of the disputed limitations
seriatim.
A. “detecting that an object is located proximate to, but not yet in
contact with, a surface of the touch screen display”
In the Briefs, Appellants quote this limitation in the introductory
portion of the Arguments (see App. Br. 11; Reply Br. 3), but fail to provide
any specific argument or explanation of why Jobs does not teach or suggest
the limitation. Instead, Appellants assert that “the Examiner has failed to
provide any teaching from Jobs that meets the above limitations of claim 1.”
App. Br. 14; Reply Br. 7. This amounts to no more than reciting the claim
5 Appellants argue the rejection of claims 1, 3, 8, 10, 15, 17, and 21—23 as a
group, focusing on claim 1. Thus, we consider the rejection of these claims
on the basis of representative claim 1. See 37 C.F.R. § 41.37(c)(l)(iv).
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Application 13/274,253
language and alleging the cited prior art is deficient, which does not
constitute a separate argument for patentability of the claim. See 37 C.F.R.
§ 41.37(c)(l)(iv) (“A statement which merely points out what a claim recites
will not be considered an argument for separate patentability of the claim.”);
see also In reLovin, 652 F.3d 1349, 1357 (Fed. Cir. 2011) (“[W]e hold that
the Board reasonably interpreted Rule 41.37 to require more substantive
arguments in an appeal brief than a mere recitation of the claim elements and
a naked assertion that the corresponding elements were not found in the
prior art.”). Regardless, Appellants acknowledge that Jobs teaches “when
the finger of the user moves within a distance d? of the touch screen display,
the finger is in-range of the touch screen display, and, in response, a key
icon that is close to the finger of the user is highlighted.” Reply Br. 4 (citing
Jobs 11193 and Fig. 59B); see also App. Br. 12. This is consistent with the
Examiner’s finding that Jobs teaches detecting an object located proximate
to the screen. See Final Act. 6—7 (citing Jobs 11193 and Fig. 59B); Ans. 3
(citing Jobs 11197). Thus, the preponderance of the evidence demonstrates
that Jobs teaches the “detecting” limitation of claim 1.
B. “calculating a motion vector associated with the object that
indicates a trajectory of the object relative to the surface of the
touch screen display”
The Examiner cites Figures 59A—E, and the related text at paragraphs
1191—1199, of Jobs as teaching or suggesting this limitation. Final Act. 7;
Ans. 3. Appellants argue these portions of Jobs fail to disclose calculating a
motion vector that indicates a trajectory of an object because they (1)
disclose “how a key icon is modified based upon a single distance (e.g., a
distance di, a distance d2, or a distance d.^) of a finger from a touchscreen”
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and (2) “are entirely silent regarding calculating any type of motion vector
that indicates a trajectory of the finger.” App. Br. 12; Reply Br. 5.
Appellants also argue that, to teach this limitation of claim 1, “Jobs would
need to disclose some type of calculation in which, for example, first finger
coordinates are subtracted from second finger coordinates in order to
determine both a magnitude and a direction (i.e., a motion vector) indicating
the trajectory of the finger.” App. Br. 12; Reply Br. 5. Appellants further
argue that “nowhere in ^ [1191] — [1199] of Jobs is there any mention of
calculating a motion vector based on two different distances (e.g., di and d2),
as alleged by the Examiner.” Reply Br. 5.
We are not persuaded by Appellants’ arguments that the Examiner
erred. The Examiner finds, and we agree, that Jobs teaches more than a
“single distance” from the screen is used to determine the screen operation
because, as the Examiner explains:
the distance d3 is the same for both FIG. 59C and FIG. 59D yet
the operation of highlighting the keyboard is shown in 59C but
not in 59D. The screen operation is different depending on the
direction of movement of the finger and whether or not it is
determined to be moving toward or away from the touch screen.
Ans. 4—5.6
The Examiner also finds, and we agree, that as the finger in Jobs
moves down from distance di to d2 (“slightly below (i.e., within) the in-range
distance threshold”), a motion vector is defined by these points with the
6 We have considered Appellants’ arguments that paragraphs 1195 and 1196
of Jobs contradict the Examiner’s findings, but are not persuaded by them.
See Reply Br. 5—6. In particular, although paragraph 1195 describes the
finger is a distance d4 away from the touch screen, we note that Jobs
describes that distance d3 and d4 can both be at the in-contact distance
threshold (i.e., the same distance).
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direction of trajectory of motion toward the screen. Ans. 3 (citing Jobs Figs.
59A—E, 11193). This finding is consistent with the Examiner’s
interpretation that a “motion vector comprises a vector between two or more
positions of the object at different points in time'1'’ (see Final Act. 7) and the
Specification, which states a motion vector is calculated “based on the
difference between the two [consecutive positions of finger 250 (i.e., each
position includes an x-coordinate, y-coordinate, and z-coordinate]” (see
Spec. 1 55). We are not persuaded by Appellants’ arguments that (1) Jobs is
“silent” regarding “calculating any type of motion vector” and (2) that to
teach the disputed limitation Jobs must “disclose some type of calculation in
which, for example, first finger coordinates are subtracted from second
finger coordinates in order to determine both a magnitude and a direction”
(see App. Br. 12; Reply Br. 4) because the Specification describes the motion
vector is calculated only by calculating a difference in coordinates (i.e., does
not determine a magnitude) and because Appellants’ arguments reduce to an
assertion that the disputed claim language is not disclosed verbatim in Jobs.
The doctrine of obviousness, however, is not an ipsissimis verbis test. That
is, identity of terminology is not required. See In re Bode, 550 F.2d 656,
660 (CCPA 1977) (“The specific limitation need not be disclosed in haec
verba in the reference.”). Rather, the obviousness inquiry is directed to
whether the cited references would have taught or suggested the claimed
subject matter to one of ordinary skill in the art at the time of the invention.
KSRInt'l Co. v. Teleflex, Inc., 550 U.S. 398, 417 (2007). Here, because Jobs
teaches a finger moving downward toward the surface of the touch screen
from position di to position d2 that causes the key icon “H,” which is close
to the finger on the display, to be highlighted, Jobs at least suggests
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“calculating a motion vector associated with the object that indicates a
trajectory of the object relative to the surface of the touch screen display.”
See Merck & Co., Inc. v. Biocraft Labs, Inc., 874 F. 2d 804, 807—08 (Fed.
Cir. 1989) (“[T]he question under 35 U.S.C. 103 is not merely what the
references expressly teach but what they would have suggested to one of
ordinary skill in the art at the time the invention was made.”).
C. “calculating a target location of an intersection point of the
motion vector with the surface”
The Examiner finds this limitation is taught or suggested by Figures
59A—D and paragraphs 1106, 1107, and 1193 of Jobs. Final Act. 7; Ans. 3—
4. Appellants argue Jobs is silent regarding calculating a motion vector
“used to calculate a target location of an intersection point.” App. Br. 12;
Reply Br. 5. Appellants also argue that because Jobs is silent regarding
calculating a motion vector, Jobs “cannot disclose calculating a target
location of an intersection point of such a motion vector with a surface,” as
required by claim 1. Reply Br. 6.
We are not persuaded by Appellants’ arguments. Instead, we agree
with the Examiner that Jobs teaches the motion vector defined by points di
to &2, as discussed supra, has a trajectory of motion normal to the touch
screen surface that intersects the screen surface at the location of the key
icon “H.” Ans. 3, 5 (citing Jobs Figs. 59A—D, 11193). Although Jobs does
not expressly teach “calculating” a target location of an intersection point,
because Jobs teaches a motion vector defined by points di to &2 having a
trajectory of motion normal to the touch screen surface that intersects the
screen surface at the location of the key icon “H,” we agree with the
Examiner’s finding that Jobs at least suggests “calculating a target location
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of an intersection point of the motion vector with the surface.” See Merck &
Co., 874 F. 2d at 807-08.
For the foregoing reasons, and based on a preponderance of the
evidence, we are not persuaded the Examiner erred in (1) finding Jobs
teaches or suggests the disputed limitations of claim 1 and (2) concluding
the combination of Fox and Jobs renders the subject matter of claim 1
obvious under 35 U.S.C. § 103(a). Accordingly, we sustain the Examiner’s
rejection of claim 1. For the same reasons, we also sustain the Examiner’s
rejection of independent claims 8 and 15, as well as claims 3, 10, 17, and
21—23, which depend variously from claims 1, 8, and 15, and are not
separately argued.
DECISION
We affirm the Examiner’s decision rejecting claims 1, 3, 8, 10, 15, 17,
and 21-23 under 35 U.S.C. § 103(a).
No time period for taking any subsequent action in connection with
this appeal maybe extended. See 37 C.F.R. § 1.136(a)(l)(iv).
AFFIRMED
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