Polycom, Inc.

Patent Trials and Appeals Board

Mar 28, 2022

2021000274 (P.T.A.B. Mar. 28, 2022)

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. 15/615,642 06/06/2017 Alain Nimri 199-2028US 7436 11422 7590 03/28/2022 Keith Lutsch PC - Poly 801 Travis Street, Suite 1610 Houston, TX 77002 EXAMINER KEATON, SHERROD L ART UNIT PAPER NUMBER 2178 NOTIFICATION DATE DELIVERY MODE 03/28/2022 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): eofficeaction@appcoll.com patents@keithlutschpc.com polyip@dennemeyer.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________________ Ex parte ALAIN NIMRI, SHU GAO, STEPHEN SCHAEFER, ROBERT MURPHY, and DANIEL PALMER ____________________ Appeal 2021-000274 Application 15/615,642 Technology Center 2100 ____________________ Before JOHNNY A. KUMAR, NORMAN H. BEAMER, and MICHAEL T. CYGAN, Administrative Patent Judges. KUMAR, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the Examiner’s decision to reject claims 1-21. We have jurisdiction under 35 U.S.C. § 6(b). We REVERSE. 1 We use the word “Appellant” to refer to “applicant” as defined in 37 C.F.R. § 1.42. Appellant identifies the real party in interest as Plantronics, Inc. Appeal Br. 3. Appeal 2021-000274 Application 15/615,642 2 CLAIMED SUBJECT MATTER Claim 1 is illustrative of the claimed subject matter (bracketed matter added): 1. A presentation system, the presentation system comprising: a touch sensitive display; a processor coupled to the touch sensitive display; and a memory storing instructions and coupled to the processor, the instructions comprising instructions executable by the processor to cause the touch sensitive display to: [L1] detect a plurality of regular touch gestures; [L2] determine the nature of each of the plurality of regular touch gestures based on at least one factor; [L3] determine if at least two of the plurality of regular touch gestures should be grouped into a group based on the nature of each of the plurality of regular touch gestures; and [L4] display an indication corresponding to each of the plurality of regular touch gestures for a period of time, [L5] wherein the period of time of each of the plurality of regular touch gestures not grouped into a group is independent of each other of the plurality of regular touch gestures and is based on the nature of the regular touch gesture, and [L6] wherein the period of time of each of the plurality of regular touch gestures that are grouped into a group is dependent on the nature of each of the plurality of regular touch gestures that are in the group and are independent of each other of the plurality of regular touch gestures not in the group. REJECTIONS Claims 1, 6, 8, 13, 15, and 20 under 35 U.S.C. § 103 as being unpatentable over Xin (US 2013/0342486 A1, pub. Dec. 26, 2013), in view of Garin (US 2011/0265034 A1, pub. Oct. 27, 2011). Appeal 2021-000274 Application 15/615,642 3 Claims 2-4, 9-11, and 16-18 under 35 U.S.C. § 103 as being unpatentable over Xin in view of Garin, in further view of Casey (US 2014/0109018 A1, pub. Apr. 17, 2014). Claims 5, 12, and 19 under 35 U.S.C. § 103 as being unpatentable over Xin in view of Garin, in further view of Thompson (US 2013/0191768 A1, pub. July 25, 2013). Claims 7, 14, and 21 under 35 U.S.C. § 103 as being unpatentable over Xin in view of Garin, in further view of Ogasawara (US 2016/0155212 A1, pub. June 2, 2016). ANALYSIS We select claim 1 as the representative claim for this rejection.2 The contentions discussed herein as to claim 1 are dispositive as to the rejections. We have reviewed the Examiner’s rejection of claim 1 in light of Appellant’s arguments that the Examiner has erred. Appellant’s contentions we discuss are dispositive as to the rejections on appeal. Therefore, Appellant’s other contentions are not discussed in detail herein. As reproduced supra, part L6 of claim 1 recites: wherein the period of time of each of the plurality of regular touch gestures that are grouped into a group is dependent on the nature of each of the plurality of regular touch gestures that are in the group and are independent of each other of the plurality of regular touch gestures not in the group. (hereinafter “disputed limitations,” emphases added). 2 Independent claims 8 and 15 recite similar subject matter. Appeal 2021-000274 Application 15/615,642 4 Appellant contends that Xin does not teach the disputed limitations. Appeal Br. 9-12. Appellant also points to Figure 9 of Xin to further explain the teachings of Xin. Appeal Br. 15-16. In rejecting claim 1, the Examiner finds that Xin’s Figures 3, 4 and paragraphs 37 to 39 teach the disputed limitations. Final Act. 5, 6. The Examiner further finds that “Xin clearly states that a context of annotations 310 and 320 is intended to be maintained. This context is maintained in that the annotations are faded together. This clearly shows a dependency which appellant also argues Xin lacks.” Ans. 5 (citing Xin ¶ 43) (emphases added). Appellant contends, and we agree, that Xin’s fading together does not suggest grouping of gestures in a dependent way because in Xin while annotations 310 and 320 both fade in Fig. 4, it is not because they are grouped but because the context for each annotation has changed. The Examiner’s Answer ignores all of Figure 9 and its description and ignores the causation described in ¶ [0043]. As argued in the Appeal Brief, Figure 9 makes it completely clear that the annotations fade independently. Reply Br. 2-3. As articulated by the Federal Circuit, the Examiner’s burden of proving non-patentability is by a preponderance of the evidence. See In re Caveney, 761 F.2d 671, 674 (Fed. Cir. 1985) (“[P]reponderance of the evidence is the standard that must be met by the PTO in making rejections”). “A rejection based on section 103 clearly must rest on a factual basis.” In re Warner, 379 F.2d 1011, 1017 (CCPA 1967). “The Patent Office has the initial duty of supplying the factual basis for its rejection. It may not . . . resort to speculation, unfounded assumptions or hindsight reconstruction to supply deficiencies in its factual basis.” Id. We conclude the Examiner’s Appeal 2021-000274 Application 15/615,642 5 analysis fails to meet this standard because, on this record, the rejection does not adequately explain the Examiner’s findings of fact. Appellant’s contentions on pages 2 to 4 of the Reply Brief are persuasive. In particular, we agree with Appellant that, on this record, the Examiner has not sufficiently shown (Ans. 3-6), nor do we find, that the combination of Xin and Garin teaches the disputed limitations, as required by claim 1. We conclude, consistent with Appellant’s argument, that there is currently insufficient articulated reasoning to support the Examiner’s finding that the combination of Xin and Garin teaches, suggests, or otherwise renders obvious the disputed limitations as required by claim 1. CONCLUSION The Appellant has demonstrated the Examiner erred in rejecting claims 1-21 as being unpatentable under 35 U.S.C. § 103(a). The Examiner’s rejection of claims 1-21 as being unpatentable under 35 U.S.C. § 103(a) is reversed. DECISION SUMMARY In summary: Claim(s) Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 1, 6, 8, 13, 15, 20 103(a) Xin, Garin 1, 6, 8, 13, 15, 20 2-4, 9-11, 16-18 103(a) Xin, Garin, Casey 2-4, 9-11, 16-18 5, 12, 19 103(a) Xin, Garin, Thompson 5, 12, 19 7, 14, 21 103(a) Xin, Garin, Ogasawara 7, 14, 21 Overall Outcome 1-21 Appeal 2021-000274 Application 15/615,642 6 REVERSED