13731220 (P.T.A.B. Aug. 31, 2017)

Ex Parte Muller et al

Patent Trial and Appeal BoardAug 31, 2017

13731220 (P.T.A.B. Aug. 31, 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. 13/731,220 12/31/2012 Michael Muller LOT920050038US2 9573 (098DIV) 46321 7590 CRGO LAW STEVEN M. GREENBERG 7900 Glades Road SUITE 520 BOCA RATON, EL 33434 09/05/2017 EXAMINER FABER, DAVID ART UNIT PAPER NUMBER 2177 NOTIFICATION DATE DELIVERY MODE 09/05/2017 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): docketing@crgolaw.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte MICHAEL MULLER and CORINNE M. RYAN Appeal 2017-001228 Application 13/731,220 Technology Center 2100 Before JEAN R. HOMERE, CAROLYN D. THOMAS, and JAMES R. HUGHES, Administrative Patent Judges. THOMAS, Administrative Patent Judge. DECISION ON APPEAL Appellants seek our review under 35 U.S.C. § 134(a) of the Examiner’s Final Rejection of claims 1—7 and 10—17, all the pending claims in the present application. Claims 8 and 9 are canceled. See Claim Appendix. We have jurisdiction over the appeal under 35 U.S.C. § 6(b). We AFFIRM. The present invention relates generally to accessible list navigation. See Abstract. Appeal 2017-001228 Application 13/731,220 Claim 1 is illustrative: 1. A user interface article of manufacture configured for accessible list navigation, the user interface article of manufacture comprising: a non-transitory computer memory; markup loaded into the non-transitory computer memory defining a list for display in a user interface, the list comprising a plurality of selectable list items; an obscured marker also loaded into the non-transitory computer memory associated with one of said plurality of selectable list items, the obscured marker being displayed in the user interface in connection with the one of said plurality of selectable list items and in a manner obscured from view related to other content concurrently displayed in the user interface; and, jump logic associated with said obscured marker and indicated in the markup, the jump logic resulting in a navigation to a specified different one of said plurality of selectable list items responsive to an activation of said obscured marker. Appellants appeal the following rejections: Rl. Claims 1—4, 6, 10, 12—14, 16, and 17 are rejected under 35 U.S.C. § 103(a) as being unpatentable over Clark (Joe Clark, Building Accessible Websites (October 2002) and SJDC (San Joaquin Delta College- Site Map (online early as 12/12/2004, 6 pages+ 31 pages of source code: 37 pages total); R2. Claims 5, 7, 11, and 15 are rejected under 35 U.S.C. § 103(a) as being unpatentable over Clark and SJDC in combination with various other prior art (see Final Act. 9—10); and R3. Claims 1—7, 10, and 11 are rejected on the ground of nonstatutory double patenting as being unpatentable over various claims of various prior art (see Final Act. 12—13). We review the appealed rejections for error based upon the issues 2 Appeal 2017-001228 Application 13/731,220 identified by Appellants, and in light of the arguments and evidence produced thereon. Ex parte Frye, 94 USPQ2d 1072, 1075 (BPAI 2010) (precedential). ANALYSIS Rejection under § 103(a) Issue: Did the Examiner err in finding that Clark and SJDC collectively teach or suggest an obscured marker, as set forth in claim 1 ? Appellants contend that’’[t]he claim construction asserted by the Board of ‘obscured marker’ is anything not clearly seen as provided by the Honorable Board in Appeal 2010-001305” (Appeal Br. 5). Appellants further contend that “by the very words of Clark itself, the ‘Skip navigation’ link must be visible as well as apparent and also self-explanatory in all browsers” (id. at 7) which is “hardly the definition of ‘obscured’ as defined by the Honorable Board” (id. at 6; emphasis omitted). In response, the Examiner finds that “[t]he discussion of the Lynx browser on page 11 is only one embodiment [in Clark] . . . Clark [also] discloses embodiments of graphical browsers that [are] capable of providing obscured markers as defined by the Board” (Ans. 4). We agree with the Examiner. We refer to, rely on, and adopt the Examiner’s findings and conclusions set forth in the Answer. Our discussions here will be limited to the following points of emphasis. As an initial mater, we highlight that in a related case, i.e., Appeal No. 2010-001305 (Application 11/168,601; US Patent No. 8,365,063) hereinafter Related Decision, this Panel found that “the term ‘obscure’ 3 Appeal 2017-001228 Application 13/731,220 denotes something that is not clearly seen nor easily distinguished. Webster’s Ninth New Collegiate Dictionary, p. 815 (1990). As such, we conclude that the claimed ‘obscured marker’ can be anything not clearly seen” (Related Decision 4—5). Both Appellants and the Examiner accept this definition (see App. Br. 4—5 and Ans. 6). In line with that definition, the Examiner finds, and we agree, that “[w]hile Clark does disclose some examples/embodiments of the skip hyperlink [that] can be easily seen . . . Clark ALSO discloses embodiments of the skip hyperlink that cannot be easily seen in common known graphical browsers” (Ans. 5), such as “text having a small font size or a tiny graphic image that is hard to see” (id. at 6), and that “[t]his fits the definition of being ‘not easily seen’ as defined by the Board” (id.). For example, Clark discloses: Well-intentioned developers who already use page anchors to skip navigation will go to the trouble to set the anchor text in the tiniest possible font in the same colour as the background, rendering it invisible to graphical browser . . . An image ten pixels wide by one pixel high is essentially invisible. It’s entirely invisible if its colour marches the background and it lacks a border, or, of course, if it’s a transparent GIF. (page 10). Although Appellants are correct that Clark discloses that “the ‘Skip navigation’ link must be visible as well as apparent and also self-explanatory in all browsers” (Appeal Br. 7, citing Clark page 11), this disclosure is an embodiment for Lynx users, i.e., when you need to add an entirely visible hyperlink, a navigation-skipper, to your pages. However, as illustrated supra by the Examiner, Clark’s disclosure does not only describe “visible 4 Appeal 2017-001228 Application 13/731,220 hyperlinks,” but also describes that it was known to have “obscured” markers that “nearly everyone would miss . . . [because] only seasoned neurosurgeons would have enough hand-eye coordination to actually hit a single pixel with a mouse” (see Clark, page 10). Thus, we find unavailing Appellants’ contention that Clark only discloses that the “Skip navigation” link must be visible (Appeal Br. 7), as this merely appears to be an embodiment for Lynx users and is not a requirement for all graphical browsers, i.e., only applicable to certain cases. Accordingly, we sustain the Examiner’s rejection of claim 1. Appellants’ arguments regarding the Examiner’s rejection of independent claim 10 rely on the same arguments as for claim 1, and Appellants do not argue separate patentability for the dependent claims. See Appeal Br. 3—8. We therefore also sustain the Examiner’s rejection of claims 2—7 and 10—17. Double Patenting Rejections On the record before us, we observe that Appellants present no arguments on appeal regarding the Examiner’s obviousness-type double patenting rejection of claims 1—7, 10, and 11. Final Act. 10-13. We note that arguments not made are considered waived. See 37 C.F.R. § 41.37 (c)( 1 )(vii). Therefore, we pro forma affirm the Examiner’s obviousness-type double patenting rejection of claims 1—7, 10, and 11 in the event such rejections are being maintained. DECISION We affirm the Examiner’s § 103(a) rejections and the Double Patenting rejections Rl—R3. 5 Appeal 2017-001228 Application 13/731,220 No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a)(l)(iv). AFFIRMED 6