Ex Parte Hejza Litwiller

Board of Patent Appeals and Interferences

Feb 26, 2007

10179555 (B.P.A.I. Feb. 26, 2007)

The opinion in support of the decision being entered today was not written
for publication and is not binding precedent of the Board.

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte DEBORA MARGARET HEJZA LITWILLER
____________

Appeal No. 2007-0919
Application 10/179,555
Technology Center 2100
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Decided: February 26, 2007
____________

Before JOSEPH F. RUGIERO, JEAN R. HOMERE, and JAY P. LUCAS,
Administrative Patent Judges.

HOMERE, Administrative Patent Judge.

STATEMENT OF THE CASE
Appellant appeals from the Examiner’s final rejection of claims 4 and
5 pursuant to 35 U.S.C. § 134. We have jurisdiction under 35 U.S.C. § 6(b)
to decide this appeal.

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The Examiner rejects claims 4 and 5 as follows:
Claims 4 and 5 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over the combination of Vanderheiden and Furuhata.

The Examiner relies on the following references:
Furuhata 5,943,043 Aug. 24, 1999
Vanderheiden 6,049,328 Apr. 11, 2000

Independent claim 4 is illustrative and representative of the
Appellant’s invention. It reads as follows:
4. A method for providing audible feedback to enable a visually
impaired person to operate a multi-function machine, comprising:

(a) selecting either operating the multi-function machine in a
first
mode or operating the multi-function machine in a second mode, the
first mode having an audible feedback function disabled, the second
mode having the audible feed function enabled;

(b) providing a plurality of touchable elements to enable
selection of a plurality of selection menu options associated with
features of the multi-function machine;

(c) engaging one of the plurality of touchable elements to cause
the engaged touchable element to be activated;

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(d) activating a process associated with the activated touchable
element when the multi-function machine is operating in the first
mode;

(e) audibly informing a user of the selectable menu option
associated with the activated touchable element when the multi-
function machine is operating in the second mode and the activated
touchable element has been non-consecutively engaged;

(f) activating a process associated with the activated touchable
element and audibly informing a user of the selected menu option
associated with the activated touchable element when the multi-
function machine is operating in the second mode and the activated
touchable element has been consecutively engaged; and

(g) audibly informing a user that the audible feedback function
is being disabled when the first mode of operating the multi-function
machine has been selected.

Appellant contends that claims 4 and 5 would not have been obvious
over the combination of Vanderheiden and Furuhata.1 Particularly,
Appellant contends that Vanderheiden does not fairly teach or suggest
audibly informing a user that the audible feedback function is being disabled
when the user transitions from a second mode to a first mode of operating
the multi-function machine, as recited in claim 4 (Br. 5; Reply Br. 3).

1 This decision considers only those arguments that Appellant
submitted in the Appeal and Reply Briefs. Arguments that Appellant could
have made but chose not to make in the Briefs are deemed to have been
waived. See 37 CFR 41.37(c)(1)(vii) (eff. Sept. 13, 2004). See also In re
Watts, 354 F.3d 1362, 1368, 69 USPQ2d 1453, 1458 (Fed. Cir. 2004).
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The Examiner contends that Vanderheiden teaches the claimed
audible informing step by providing a background sound in the second mode
of operation that becomes silent when the first mode of operation is
subsequently selected (Answer 7). According to the Examiner, by
discontinuing the background sound as the user transitions from the second
mode to the first mode of operation, Vanderheiden teaches audibly
informing the user that the audible feedback function is being disabled (Id.).
The Examiner therefore concludes that it would have been obvious to one of
ordinary skill in the art to combine Vanderheiden with Furuhata to yield the
claimed invention.
We affirm.

ISSUES
The pivotal issue on appeal before us is as follows:
(1)Under 35 U.S.C. § 103(a), would one of ordinary skill in the art, at the
time of the present invention, have found that the Vanderheiden-Furuhata
combination renders the claimed invention unpatentable when Vanderheiden
teaches disabling the background sound as the user transitions from a second
mode to a first mode of operation?
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FINDINGS OF FACT
Appellant invented a method for providing audible feedback to
enable a visually impaired person to navigate touch screen menu displays
typically associated with multi-function office machines (Specification 1,
ll. 5-8). Particularly, the invention aims at audibly informing the user when
transitioning from the second mode of operation, which has the audible
feedback function enabled, to the first mode of operation, which has the
audible feedback function disabled (Specification 7, ll. 19-22). Appellant’s
invention further uses an ON/OFF switch to transition between the two
modes of operation and includes a feedback sound file that is associated with
the ON/OFF switch, which audibly informs the user the state of the switch,
i.e., whether the audible feedback is enabled or disabled.
Vanderheiden discloses a touch screen system for people with
disabilities. (Abstract). The touch screen system is equipped with a
background sound (74) to indicate that an audio mode has been selected and
is working properly (col. 7, ll 52-58). In particular, Vanderheiden explains
that in the second (audio) mode of operation, the background sound audibly
informs a user that the touch panel is being touched, but not with a virtual
button (Id.). For example, figure 7 illustrates that the background sound is
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produced when transitioning from the “NO TOUCH” state (102) to the
“BLANK” state (100). The “NO TOUCH” state is entered when the finger
is not touching the touch panel and the “BLANK” state is entered when the
finger touches the background area of the touch panel—the area not within
any virtual button (col, 8, ll. 41-47). In addition, an “UP-AUDIO RIDGE”
sound is produced when the finger moves from the background area to a
particular button, while a “DOWN-AUDIO RIDGE” sound is produced
when the finger moves from the button to the background area (col. 9, ll. 46-
58). Hence, Vanderheiden discloses that some type of sound (background,
UP-AUDIO RIDGE, or DOWN-AUDIO RIDGE) is produced in the second
mode of operation when the finger touches the touch panel.2 In contrast,
these sounds are disabled in the first (non-audio) mode of operation and
therefore no sound is produced when the finger touches the touch panel (col.
6, ll. 18-26).
During operation, Vanderheiden explains that the second mode of
operation can be activated by pressing against the upper right hand corner
(56) on the display and drawing leftward at least half way across the top of

2 Vanderheiden explains that no sound is generated in the second mode of
operation when the finger is not touching the touch panel (col. 9, l. 64 to col.
10, l. 2). Vanderheiden describes this as the “NO TOUCH” state (col. 8, ll.
46-47).
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the display area (58) (col. 6, ll. 29-34 and figure 2). In the second mode of
operation, audible feedback is enabled and the background, UP-AUDIO
RIDGE, or DOWN-AUDIO RIDGE sounds are produced when the user
touches the touch panel. Subsequently, a user can convert back to the first
mode of operation by applying an opposing gesture—by pressing against the
upper left hand side of the display (60) and drawing rightward across the top
of the display (62) (col. 6, ll. 36-39). Once the first mode of operation is
selected, the audible feedback function is disabled and no sounds are
produced when the user touches the panel (col. 6, ll. 18-26).

PRINCIPLES OF LAW
In rejecting claims under 35 U.S.C. § 103, the Examiner bears the
initial burden of establishing a prima facie case of obviousness. In re
Oetiker, 977 F.2d 1443, 1445, 24 USPQ2d 1443, 1444 (Fed. Cir. 1992). See
also In re Piasecki, 745 F.2d 1468, 1472, 223 USPQ 785, 788 (Fed. Cir.
1984). The Examiner can satisfy this burden by showing that some
objective teaching in the prior art or knowledge generally available to one of
ordinary skill in the art suggests the claimed subject matter. In re Fine, 837
F.2d 1071, 1074, 5 USPQ2d 1596, 1598 (Fed. Cir. 1988). Only if this initial
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burden is met does the burden of coming forward with evidence or argument
shift to the Appellants. Id., 977 F.2d at 1445, 24 USPQ2d at 1444. See also
Id., 745 F.2d at 1472, 223 USPQ at 788. Thus, the Examiner must not only
assure that the requisite findings are made, based on evidence of record, but
must also explain the reasoning by which the findings are deemed to support
the Examiner’s conclusion.

ANALYSIS
The Examiner properly found that Vanderheiden teaches Appellant’s
claim limitation of audibly informing the user that the audible feedback
function is being disabled when the first mode of operation is selected. We
note that the Examiner’s finding is reasonable in light of Vanderheiden’s
teaching of disabling the background, UP-AUDIO RIDGE, and DOWN-
AUDIO RIDGE sounds when a user, in the second mode, touches the panel
to transition to the first mode of operation. One of ordinary skill in the art
would have readily recognized that when the user, in the second mode of
operation, (1) presses against the upper left hand side of the display, (2)
draws rightward across the top of the display to convert back to the first
mode of operation, (3) touches the touch panel and (4) subsequently hears no
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sound, the user is audibly informed that the audible feedback function is
being disabled and the first mode of operation is selected. The ordinarily
skilled artisan would have thus appreciated that the absence of the
background sound resulting from the user’s actions as the user transitions
from one mode of operation to another is indicative of the user being audibly
informed of the transition. After considering the entire record before us, we
find that the Examiner did not err in rejecting claim 4 under 35 U.S.C.
§ 103(a) as being unpatentable over the combination of Vanderheiden and
Furuhata. We also find that the Examiner did not err in rejecting dependent
claim 5 under 35 U.S.C. § 103(a) as being unpatentable over the
combination of Vanderheiden and Furuhata.3

3 Appellants have not presented any substantive arguments directed
separately to the patentability of the dependent claim. In the absence of a
separate argument with respect to the dependent claim, this claim stands or
falls with the representative independent claim. See In re Young, 927 F.2d
588, 590, 18 USPQ2d 1089, 1091 (Fed. Cir. 1991). See also 37 C.F.R.
§ 41.37(c)(1)(vii).
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CONCLUSION OF LAW
On the record before us, one of ordinary skill in the art, at the time of
the present invention, would have found that the Vanderheiden-Furuhata
combination renders the claimed invention unpatentable under 35 U.S.C.
§ 103(a) when Vanderheiden teaches disabling the background sound as the
user transitions from a second mode to a first mode of operation.

DECISION
We have affirmed the Examiner’s decision to reject claims 4 and 5
under 35 U.S.C. § 103(a).
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

kis

BASCH & NICKERSON, L.L.P.
1777 PENFIELD ROAD
PENFIELD, NY 14526