Daniel Wigdor et al.

Patent Trials and Appeals Board

Jun 17, 2020

12630381 - (D) (P.T.A.B. Jun. 17, 2020)

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.
12/630,381 12/03/2009 Daniel John Wigdor 327883-US-NP 9630
39254 7590 06/17/2020
Barta, Jones & Foley, P.C.
(Patent Group - Microsoft Corporation)
3308 Preston Road
#350-161
Plano, TX 75093
EXAMINER
NGUYEN, LE V
ART UNIT PAPER NUMBER
2174
NOTIFICATION DATE DELIVERY MODE
06/17/2020 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):
docket@bjfip.com
usdocket@microsoft.com
uspto@dockettrak.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte DANIEL JOHN WIGDOR, JARROD LOMBARDO,
ANNUSKA ZOLYOMI PERKINS, and SEAN HAYES
Appeal 2019-006116
Application 12/630,381
Technology Center 2100
Before JOHNNY A. KUMAR, STACEY G. WHITE, and
SCOTT B. HOWARD, Administrative Patent Judges.
HOWARD, 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, 3–7, 9, 10, and 12–22. See Final
Act. 1. Claims 2, 8, and 11 have been cancelled. Appeal Br. A-1, A-2, A-3.
We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.

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 Microsoft
Technology Licensing, LLC. Appeal Br. 1.
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CLAIMED SUBJECT MATTER
The claims are directed to a three-state touch input system.
Specifically,
a touch screen input device is provided which simulates a 3-state
input device such as a mouse. One of these states is used to
preview the effect of activating a graphical user interface element
when the screen is touched. In this preview state touching a
graphical user interface element on the screen with a finger or
stylus does not cause the action associated with that element to
be performed. Rather, when the screen is touched while in the
preview state audio cues are provided to the user indicating what
action would arise if the action associated with the touched
element were to be performed.
Spec. ¶ 5. Claim 1, reproduced below, is illustrative of the claimed subject
matter:
1. A method performed on a computing device, the method
comprising:
displaying a graphical user interface element on a touch
screen;
receiving a first touch on the touch screen;
entering, in response to the received first touch and while
continuing to receive the first touch, a first state that enables an
audio cue that indicates information associated with the graphical
user interface element when the first touch is at a location of the
graphical user interface element;
receiving, while in the first state, an indication that the first
touch is at the location of the graphical user interface element;
based at least on the indication that the first touch is at the
location of the graphical user interface element, providing the
audio cue that indicates the information associated with the
graphical user interface element;
receiving, while in the first state, a second touch on the
touch-screen while continuing to receive the first touch; and
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performing, in response to the received second touch while
continuing to receive the first touch, a function associated with
the graphical user interface element.
REFERENCES
The prior art relied upon by the Examiner is:
Name Reference Date
Westerman US 2008/0036743 A1 Feb. 14, 2008
Seymour US 2010/0199215 A1 Aug. 5, 2010
(filed Feb. 5, 2009)
Fleizach US 2010/0313125 A1 Dec. 9, 2010
(filed Sept. 23, 2009)
Wang US 2011/0115746 A1 May 19, 2011
(filed Nov. 16, 2009)

REJECTION
Claims 1, 4–7, 9, 13–17, 19, and 20–22 stand rejected under 35 U.S.C.
§ 103 as unpatentable over Fleizach and Wang.
Claims 3, 12, and 18 stand rejected under 35 U.S.C. § 103 as
unpatentable over Fleizach, Wang, and Westerman.
Claim 10 stands rejected under 35 U.S.C. § 103 as unpatentable over
Fleizach, Wang, and Seymour.
OPINION
We have reviewed the Examiner’s rejection in light of Appellant’s
arguments that the Examiner erred. In reaching this decision, we have
considered all evidence presented and all arguments made by Appellant. We
are not persuaded by Appellant’s arguments regarding the pending claims
that the Examiner erred.
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The Examiner finds Fleizach teaches, “entering, in response to the
received first touch and while continuing to receive the first touch, a first
state that enables an audio cue that indicates information associated with the
graphical user interface element when the first touch is at a location of the
graphical user interface element,” as recited in claim 1. Final Act. 2–3;
Ans. 7. More specifically, the Examiner finds Fleizach teaches “in response
to the point of contact of the first finger, emitting accessibility information
about the dictionary application icon 149-5, e.g., the spoken text
‘dictionary.’” Final Act. 3 (citing Fleizach ¶ 255, Figs. 5FF. 5GG).
Appellant argues the Examiner erred in finding Fleizach teaches a first
touch that enables a computer device to enter a first state as recited in claim
1. Appeal Br. 11–12.2 According to Appellant,
Fleizach does not describe entering a first state upon a first touch
or while the first touch is maintained. Rather, Fleizach
essentially skips entering into an exploration “state” and merely
describes that once a user selects an icon (such as application
labeled “dictionary”), the system will provide information about
the icon, such as spoken text “dictionary”. See Fleizach,
paragraphs 254 and 255. That is, the “triggering” event in
Fleizach is a user simply selecting an icon.
Id. at 12.
We are not persuaded by Appellant’s argument that the Examiner
erred. Fleizach paragraphs 254–256—which describes Figures 5FF and
5GG—recites how “the accessibility user interface facilitates use of two
fingers on one or both hands to navigate through and activate user interface

2 We note that the Reply Brief repeats the arguments set forth in the Appeal
Brief. Compare Appeal Br. 11–14 with Reply Br. 2–5. Accordingly, we
only cite to the Appeal Brief.
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elements presented in the interface.” Fleizach ¶ 254. Fleizach describes
how a first touch activates the accessibility cursor which enables audio
associated with the name of various icons:
In UI 500FF, user selection gesture 578 begins with a first point
of contact 578-1 at texting application icon 141. In response,
accessibility cursor 502 is placed at texting application icon 141
and accessibility information about the texting application icon
141 is emitted, e.g., the spoken text “texting” or “texting
application” or “tap to select texting.”
Id. Fleizach continues to describe on how different audio is presented as the
user moves their finger to a new location with a different icon:
UI 500GG depicts that the user selection gesture’s point of
contact has moved 578-3 to dictionary application icon 149-5. In
response, the current focus and accessibility cursor 502 are
placed at dictionary application icon 149-5, and accessibility
information about the dictionary application icon 149-5 is
emitted, e.g., the spoken text “dictionary” or “dictionary
application” or “tap to select dictionary.”
Id. ¶ 255. Thus, the first touch triggers a state in which audio cues are given.
Accordingly, we are not persuaded by Appellant’s argument the Examiner
erred.
The Examiner further finds Wang, in combination with Fleizach,
teaches “receiving, while in the first state, an indication that the first touch is
at the location of the graphical user interface element” as recited in claim 1.
Final Act. 3; Ans. 8. Specifically, the Examiner finds Wang teaches
“receiving an indication that a first touch is at a location of a graphical user
interface ([F]ig. 1; para [0062]: host application receives a touch event).”
Final Act. 3; see also Ans. 8 (“Wang teaches sensing/receiving user’s input
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at a location ([F]ig. 1; para [0062, 0063]: an interactive input system that
intelligently selects the object).”).
Appellant argues that “Claim 1 does not recite ‘receiving an indication
that a first touch is at a location of a graphical user interface’, rather, Claim 1
recites ‘receiving an indication that a first touch is at a location of a
graphical user interface element.’” Appeal Br. 12. According to Appellant,
“the Examiner [erred] in rejecting Claim 1 by omitting one of the features,
which is not applied to any of the cited references. That is, simply touching
a graphical user interface (as the Examiner asserts Wang describes) is very
different from touching a graphical user interface element.” Id. at 12–13.
Additionally, Appellant argues because Wang does not teach a first state as
recited in claim 1, the Examiner relied on improper hindsight to select
various elements. Id. at 13.
Nonobviousness cannot be established by attacking the references
individually when the rejection is predicated upon a combination of prior art
disclosures. In re Merck & Co., 800 F.2d 1091, 1097 (Fed. Cir. 1986). The
test for obviousness is not whether the claimed invention is expressly
suggested in any one or all of the references, but whether the claimed subject
matter would have been obvious to those of ordinary skill in the art in light
of the combined teachings of those references. In re Keller, 642 F.2d 413,
425 (CCPA 1981).
In this case, the Examiner relies on Fleizach, not Wang, for the
graphical user interface element. See Final Act. 2 (“Fleizach teaches a
method performed on a computing device, the method comprising:
displaying a graphical user interface element on a touch screen . . . .”).
Fleizach also is relied on to teach entering a first state. Ans. 7. Therefore, it
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is inapposite for Appellant to argue that Wang does not also teach the
limitations that the Examiner relied upon Fleizach to teach. Because
Appellant is arguing the references individually and not addressing the
combination the Examiner is relying on, Appellant’s argument is not
persuasive.
Furthermore, we are not persuaded by Appellant’s argument that the
Examiner relied on improper hindsight. In KSR, the Supreme Court held “if
a technique has been used to improve one device, and a person of ordinary
skill in the art would recognize that it would improve similar devices in the
same way, using the technique is obvious unless its actual application is
beyond his or her skill.” KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 417
(2007). We agree with the Examiner that the prior art contains known
solutions that have been used to improve one device and that a person
having ordinary skill in the art would have recognized that it could have
been used to improve other prior art devices in a predicable way. Appellant
has not argued that it would have been “uniquely challenging or difficult for
one of ordinary skill in the art” to make the modifications suggested by the
Examiner. See Leapfrog Enters., Inc. v. Fisher-Price, Inc., 485 F.3d 1157,
1162 (Fed. Cir. 2007) (citing KSR, 550 U.S. at 418). Therefore, we are not
persuaded by Appellant’s arguments that the Examiner erred in combining
the prior art references.
Accordingly, we sustain the rejection of independent claim 1 along
with independent claims 9 and 15—for which Appellant relies on the same
arguments set forth above regarding claim 1—and dependent claims 4–9,
13–15, 17, 19, and 20–22, which are not argued separately. See Appeal
Br. 14.
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Additionally, Appellant does not specifically address dependent
claims 3, 10, 12, and 18. See generally Appeal Br. Because we determine
that the rejection of claim 1 is not erroneous for the reasons discussed above
and Appellant has not argued that the Examiner erred with respect to claims
3, 10, 12, and 18, we sustain the rejections of these claims. See Ex parte
Frye, 94 USPQ2d 1072, 1075 (BPAI 2010) (precedential) (“If an appellant
fails to present arguments on a particular issue — or, more broadly, on a
particular rejection — the Board will not, as a general matter, unilaterally
review those uncontested aspects of the rejection.”).
CONCLUSION
The Examiner’s rejection is affirmed.
More specifically, we affirm the Examiner’s § 103 rejections of
claims 1, 3–7, 9, 10, and 12–22.
DECISION SUMMARY
Claims
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1, 4–7, 9,
13–17, 19,
20–22
103 Fleizach, Wang 1, 4–7, 9,
13–17, 19,
20–22

3, 12, 18 103 Fleizach, Wang,
Westerman
3, 12, 18
10 102 Fleizach, Wang,
Seymour
10
Overall
Outcome:

1, 3–7, 9,
10, 12–22

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TIME PERIOD FOR RESPONSE
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 1.136(a)(1)(iv).
AFFIRMED