DISH Technologies L.L.C.

Patent Trials and Appeals Board

Mar 10, 2021

2019005616 (P.T.A.B. Mar. 10, 2021)

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.
15/368,011 12/02/2016 Jeremy Stephen Mickelsen P2016-08-08 (290110.667) 1889
70336 7590 03/10/2021
Seed IP Law Group/DISH Technologies (290110)
701 FIFTH AVENUE
SUITE 5400
SEATTLE, WA 98104
EXAMINER
GUPTA, PARUL H
ART UNIT PAPER NUMBER
2627
NOTIFICATION DATE DELIVERY MODE
03/10/2021 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):
USPTOeAction@SeedIP.com
pairlinkdktg@seedip.com
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte JEREMY STEPHEN MICKELSEN,
FREDERICK GAYEN VIGO, and JACKSON LOUIE
____________

Appeal 2019-005616
Application 15/368,011
Technology Center 2600
____________

Before BARBARA A. PARVIS, JASON J. CHUNG, and
STEVEN M. AMUNDSON, Administrative Patent Judges.

AMUNDSON, Administrative Patent Judge.

DECISION ON APPEAL
Appellant1 seeks our review under 35 U.S.C. § 134(a) from a final
rejection of claims 1–5 and 7–25, i.e., all pending claims. We have
jurisdiction under 35 U.S.C. § 6(b).
We affirm in part.

1 We use the word “Appellant” to refer to “applicant” as defined in
37 C.F.R. § 1.42 (2018). Appellant identifies the real party in interest
as DISH Technologies L.L.C. Appeal Br. 1.
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STATEMENT OF THE CASE
The Invention
According to the Specification, the invention concerns “a user
frustration monitoring and control system” included with or “otherwise
operably coupled to an electronic device such as a receiving device to detect
and respond to user frustration with the receiving device or with other
components in communication with the receiving device.” Spec. ¶ 3,
Abstract.2 The Specification explains that “the user frustration monitoring
and control system may detect when, out of frustration, a user jars or hits the
receiving device or other electronic devices in communication with the
receiving device, such as a remote-control device or monitor, and will
perform an action to address the detected user frustration.” Id. ¶ 3, Abstract.
The Specification also explains that “[t]his action may be, for example,
performing a diagnostic action and/or communicating a helpful message
or instructions to the user.” Id. ¶ 3, Abstract.
Exemplary Claims
Independent claims 1 and 19 exemplify the claims at issue and read
as follows (with formatting added for clarity):
1. A system for detecting user frustration with an electronic
device, the system comprising:
at least one processor;
at least one memory coupled to the at least one processor;

2 This decision uses the following abbreviations: “Spec.” for the
Specification, filed December 2, 2016; “Final Act.” for the Final Office
Action, mailed September 21, 2018; “Advisory Act.” for the Advisory
Action, mailed February 12, 2019; “Appeal Br.” for the Appeal Brief, filed
April 22, 2019; “Ans.” for the Examiner’s Answer, mailed May 16, 2019;
and “Reply Br.” for the Reply Brief, filed July 16, 2019.
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a motion sensor affixed to the electronic device and
coupled to the at least one processor and the at least one
memory,
wherein the at least one memory has computer-
executable instructions stored thereon that, when executed by
the at least one processor, cause the at least one processor to:
receive an electronic signal from the motion sensor
that is indicative of the electronic device being jarred by
a user;
in response to receiving the electronic signal from
the motion sensor that is indicative of the electronic
device being jarred by a user, determine whether the
electronic signal received from the motion sensor that is
indicative of the electronic device being jarred by a user
is indicative of user frustration;
determine whether the electronic device is in a
mode to accept user input, wherein the determination of
whether the electronic signal received from the motion
sensor that is indicative of the electronic device being
jarred by a user is indicative of user frustration is also
based on the determination whether the electronic device
is in a mode to accept user input, such that if a
determination was made by the at least one processor that
the electronic device is not in a mode to accept user
input, the at least one processor determines that the
electronic signal received from the motion sensor that
is indicative of the electronic device being jarred by a
user is not indicative of user frustration; and
in response to the determination whether the
electronic signal received from the motion sensor that is
indicative of the electronic device being jarred by a user
is indicative of user frustration, perform an electronic
action to address the user frustration based on a
determination that the electronic signal received from the
motion sensor that is indicative of the electronic device
being jarred by a user is indicative of user frustration.
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19. A method in a system for detecting user frustration with
an electronic device, the method comprising:
determining, by at least one computer processor, whether
the electronic device is in a mode to accept user input from
other than a motion sensor of the electronic device;
determining, by at least one computer processor, whether
a signal received from the motion sensor of the electronic
device is indicative of user frustration based on the
determination whether the electronic device is in a mode to
accept user input and based on an amount of dynamic
acceleration of the electronic device indicated by the signal
received from the motion sensor of the electronic device;
in response to a determination that the electronic device
is not in a mode to accept user input, determine that the
electronic signal received from the motion [sic] is not indicative
of user frustration;
in response to a determination by the at least one
processor that the electronic device is in a mode to accept user
input, determine that another electronic signal received from
the motion sensor is indicative of user frustration based on
an amount of dynamic acceleration of the electronic device
indicated by the other signal received from the motion sensor
of the electronic device; and
in response to the determination by the at least one
computer processor whether the signal received from the
motion sensor of the electronic device is indicative of user
frustration based on the determination whether the electronic
device is in a mode to accept user input and based on an amount
of dynamic acceleration of the electronic device indicated by
the signal received from the motion sensor of the electronic
device, communicating, by the at least one computer processor,
information to the user regarding the determination whether the
signal received from a motion sensor of the electronic device is
indicative of user frustration.
Appeal Br. 16, 21–22 (Claims App.).
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The Prior Art Supporting the Rejections on Appeal
As evidence of unpatentability under 35 U.S.C. § 103, the Examiner
relies on the following prior art:
Name Reference Date
Kiraly et al. (“Kiraly”) US 2006/0008116 A1 Jan. 12, 2006
Flack et al. (“Flack”) US 2006/0279542 A1 Dec. 14, 2006
Herz et al. (“Herz”) US 2008/0165022 A1 July 10, 2008
Raghuraman et al.
(“Raghuraman”)
US 2008/0189578 A1 Aug. 7, 2008
Nasiri et al. (“Nasiri”) US 2009/0184849 A1 July 23, 2009
Liu et al. (“Liu”) US 2009/0201168 A1 Aug. 13, 2009
Kruglick US 2012/0068845 A1 Mar. 22, 2012
Fiedler et al. (“Fiedler”) US 2015/0194040 A1 July 9, 2015
The Rejections on Appeal
Claims 19–25 stand rejected under 35 U.S.C. § 112(a) for failing to
comply with the written-description requirement. Final Act. 3–4.
Claims 1–5, 7, 11–13, 18, 19, 22, and 24 stand rejected under
35 U.S.C. § 103 as unpatentable over Herz and Kruglick. Final Act. 5–17.
Claim 8 stands rejected under 35 U.S.C. § 103 as unpatentable over
Herz, Kruglick, and Nasiri. Final Act. 18.
Claims 9 and 10 stand rejected under 35 U.S.C. § 103 as unpatentable
over Herz, Kruglick, and Flack. Final Act. 18–19.
Claims 14–16 stand rejected under 35 U.S.C. § 103 as unpatentable
over Herz, Kruglick, and Raghuraman. Final Act. 19–21.
Claims 17, 20, and 21 stand rejected under 35 U.S.C. § 103 as
unpatentable over Herz, Kruglick, and Kiraly. Final Act. 22–24.
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Claim 23 stands rejected under 35 U.S.C. § 103 as unpatentable over
Herz, Kruglick, and Fiedler. Final Act. 24–25.
Claim 25 stands rejected under 35 U.S.C. § 103 as unpatentable over
Herz, Kruglick, and Liu. Final Act. 25–26.
ANALYSIS
We have reviewed the rejections in light of Appellant’s arguments
that the Examiner erred. For the reasons explained below, we disagree with
the Examiner’s determinations under § 112(a) for claims 19–25 and with the
Examiner’s determinations under § 103 for claims 19–21. But we agree
with the Examiner’s determinations under § 103 for claims 1–5, 7–18, and
22–25. We adopt the Examiner’s findings and reasoning for the § 103
rejections of claims 1–5, 7–18, and 22–25 in the Final Office Action,
Advisory Action, and Answer. See Final Act. 2–3, 5–26; Advisory Act. 2;
Ans. 4–6. We add the following to address and emphasize specific findings
and arguments.
The § 112(a) Rejection of Claims 19–25
Section 112’s first paragraph requires that the specification “contain
a written description of the invention.” 35 U.S.C. § 112(a). The written-
description requirement serves to “clearly allow persons of ordinary skill
in the art to recognize that [the inventor] invented what is claimed.” Ariad
Pharm., Inc. v. Eli Lilly & Co., 598 F.3d 1336, 1351 (Fed. Cir. 2010)
(en banc) (alteration in original) (quoting Vas-Cath Inc. v. Mahurkar,
935 F.2d 1555, 1563 (Fed. Cir. 1991)); see also Blue Calypso, LLC v.
Groupon, Inc., 815 F.3d 1331, 1344 (Fed. Cir. 2016).
“[T]he test for sufficiency is whether the disclosure of the application
relied upon reasonably conveys to those skilled in the art that the inventor
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had possession of the claimed subject matter as of the filing date.” Ariad,
598 F.3d at 1351; Mentor Graphics Corp. v. EVE-USA, Inc., 851 F.3d 1275,
1296 (Fed. Cir. 2017). The “test requires an objective inquiry into the four
corners of the specification from the perspective of a person of ordinary skill
in the art.” Ariad, 598 F.3d at 1351. While the written-description
requirement “does not demand any particular form of disclosure” or “that the
specification recite the claimed invention in haec verba, a description that
merely renders the invention obvious does not satisfy the requirement.” Id.
at 1352. The analysis for disclosure sufficiency may consider “such
descriptive means as words, structures, figures, diagrams, formulas, etc.”
Lockwood v. Am. Airlines, Inc., 107 F.3d 1565, 1572 (Fed. Cir. 1997).
For independent claims 19 and 22, the Examiner identifies two issues
concerning Specification support. See Final Act. 4; Advisory Act. 2;
Ans. 3–4. First, the Examiner interprets claim 19 as requiring “determining
whether the electronic device is in a mode to accept user input is done by
other than the motion sensor of the electronic device.” Final Act. 4
(emphasis omitted). Then, the Examiner finds that the “Specification does
not teach this negative limitation.” Id. The Examiner identifies similar
issues for claim 22. Id. Second, the Examiner interprets claim 19 as
requiring “the reception of two electronic signals from the motion sensor in
a condition where the electronic device is in a mode to accept user input.”
Id. Then, the Examiner finds that the “Specification requires only one
electronic signal from the motion sensor to determine user frustration.” Id.
(citing Spec. ¶¶ 33–34).
Claims 20 and 21 depend directly or indirectly from claim 19, and
claims 23–25 depend directly from claim 22. The Examiner explains that
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these dependent claims “are rejected for their dependence from claims 19
and 22.” Final Act. 4.
For the first issue about determining a device mode for accepting user
input from other than a motion sensor, Appellant asserts that the Examiner
misinterprets claims 19 and 22 because neither claim recites a negative
limitation. Appeal Br. 9. Appellant explains that “claim 19 recites
‘determining, by at least one computer processor, whether.’” Id. (emphasis
omitted) (quoting claim 19). Appellant also explains that “claim 22 recites
‘computer executable instructions . . . cause . . . determining whether.’” Id.
(alteration by Appellant) (emphasis omitted) (quoting claim 22).
For the second issue about two motion-sensor signals, Appellant
asserts that the Examiner misinterprets claim 19 because it requires using
two motion-sensor signals for two determinations, i.e., two separate
assessments at two different points. See Appeal Br. 10. In particular,
Appellant argues that claim 19 requires (1) a first motion-sensor signal
associated with a first determination, i.e., “that the electronic device is not in
a mode to accept user input,” and (2) a second motion-sensor signal
associated with a second determination, i.e., “that the electronic device is in
a mode to accept user input.” Id. (emphases by Appellant).
In addition, Appellant contends that the Specification supports the
properly interpreted claims. See Appeal Br. 9–10 (citing Spec. ¶¶ 30–31);
Reply Br. 4–5 (citing Spec. ¶¶ 30, 38, 43, 49–50, 64, Fig. 2).
We agree with Appellant that the Specification supports the properly
interpreted claims. See Appeal Br. 9–10; Reply Br. 4–5. Claim 19 specifies
that “at least one computer processor” determines “whether the electronic
device is in a mode to accept user input from other than a motion sensor of
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the electronic device.” Appeal Br. 21. Claim 22 specifies that “computer
executable instructions” cause “a computer processor” to determine
“whether the electronic device is in a mode to accept user input from other
than one or more motion sensors of the electronic device.” Id. at 23. The
Specification supports a computer processor determining a device mode for
accepting user input from other than a motion sensor. See, e.g., Spec. ¶¶ 30,
38, 43, 49–50, 64, Fig. 2 (depicting CPU 203).
Further, the Examiner wrongly interprets claim 19 as requiring “the
reception of two electronic signals from the motion sensor in a condition
where the electronic device is in a mode to accept user input.” See Final
Act. 4. As Appellant argues, claim 19 requires (1) a first motion-sensor
signal associated with a first determination, i.e., “that the electronic device
is not in a mode to accept user input,” and (2) a second motion-sensor signal
associated with a second determination, i.e., “that the electronic device is in
a mode to accept user input.” See Appeal Br. 10, 22 (emphases by
Appellant). The Specification supports using two motion-sensor signals for
two determinations. See, e.g., Spec. ¶¶ 31–32, 34–35.
For the reasons discussed above, we do not sustain the § 112(a)
rejection of claims 19 and 22. And because claims 20, 21, and 23–25 “are
rejected for their dependence from claims 19 and 22,” we do not sustain the
§ 112(a) rejection of these dependent claims. See Final Act. 4.
The § 103 Rejection of Claims 1–5, 7, 11–13, 18, 19, 22, and 24
INDEPENDENT CLAIM 1
(a) Determining Device in a Mode to Accept User Input
As noted above, the § 103 rejection of claim 1 rests on Herz and
Kruglick. See Final Act. 5–8. Appellant argues that the Examiner erred in
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rejecting claim 1 because the references fail to teach or suggest the
following limitation in claim 1: “determine whether the electronic device
is in a mode to accept user input.” See Appeal Br. 11; Reply Br. 6.
In particular, Appellant quotes the Examiner’s statement that in Herz
“one embodiment considers user ‘smacking’ the device 100 only during an
active audible alert.” Appeal Br. 11 (quoting Final Act. 2–3 (citing Herz
¶¶ 148–152, Fig. 7)). Appellant then asserts that in Herz the audible alert
“wakes up the device, not the smacking,” and that “[t]he smacking then
turns off the audible alert.” Id. (citing Herz ¶ 152). Appellant also asserts
that “[k]eyboard or touch screen input, etc., may certainly be accepted when
there is no active audible alert.” Id. According to Appellant, “the device
must not only be on for the processor of the device to actually determine the
device is not in a mode to accept user input, but also be on to then to
determine something else based on that determination” according to claim 1.
Reply Br. 6 (emphasis by Appellant).
Appellant’s arguments do not persuade us of Examiner error. Herz
discloses an electronic device including (1) “one or more acceleration
sensors, or accelerometers,” and (2) an alert-processing module that analyzes
motion-sensor signals from the accelerometers. Herz ¶¶ 9, 28, 33, 50–51,
150, Figs. 1, 6. Using the motion-sensor signals, the alert-processing
module “determines whether an acceleration event, or ‘shock,’ is due to a
predetermined user gesture (e.g., a user ‘smack’ on the device body) with an
associated action to be initiated by” the alert-processing module. Id. ¶ 51.
To determine whether an acceleration event is due to a predetermined user
gesture, the alert-processing module evaluates acceleration characteristics.
Id. ¶ 52. The acceleration characteristics include “the strength, directionality
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(e.g., whether the event includes back and forth motion, in opposite
directions) and duration of an acceleration event, and in some cases,
displacement of the device.” Id.
Herz also discloses that an electronic device may save power by
turning the accelerometers off and then turning them on after determining
that an application has issued an alert. Herz ¶ 152, Fig. 7; see id. at code
(57). By determining that an application has issued an alert, Herz’s
electronic device determines that it is in a mode to accept user input
responsive to the application issuing the alert, e.g., a telephone, text, or
e-mail application. See Final Act. 2–3, 6; Ans. 4; Herz ¶¶ 3, 6, 8, 29–30, 33,
151–152, code (57), Figs. 1, 4, 7. The user input may include “finger
contacts and gestures” on a touch-sensitive display or input from “a click
wheel, a physical keyboard, a mouse and/or a joystick.” Herz ¶¶ 8, 29; see
id. ¶¶ 32–33. As Appellant admits, “[k]eyboard or touch screen input, etc.,
may certainly be accepted when there is no active audible alert” produced by
an application. See Appeal Br. 11.
(b) Determining Signal Not Indicative of User Frustration
Appellant also argues that the Examiner erred in rejecting claim 1
because the references fail to teach or suggest the following limitation in
claim 1:
if a determination was made by the at least one processor
that the electronic device is not in a mode to accept user input,
the at least one processor determines that the electronic signal
received from the motion sensor that is indicative of the
electronic device being jarred by a user is not indicative
of user frustration.
See Appeal Br. 11–12; Reply Br. 6–7. In particular, Appellant contends that
“Kruglick discloses discarding shaking the device as a frustration event
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‘because the shaking may be an input to an active application.’” Appeal
Br. 12 (quoting Kruglick ¶ 36); Reply Br. 7. Appellant also contends that
“the shaking is discarded when the device is in a mode to receive input into
the active application” and that “the shaking may be user input to an
application and not user frustration.” Appeal Br. 12 (emphases by
Appellant); Reply Br. 7.
Appellant’s arguments do not persuade us of Examiner error because
Appellant attacks the references individually. Where, as here, a rejection
rests on the combined disclosures in the references, an appellant cannot
establish nonobviousness by attacking the references individually. See
In re Merck & Co., 800 F.2d 1091, 1097 (Fed. Cir. 1986). For the reasons
explained below, the Examiner correctly finds that the combined disclosures
in the references teach or suggest the disputed limitation. See Final Act.
2–3, 6–8.
As discussed above, Herz discloses determining “whether the
electronic device is in a mode to accept user input” according to claim 1.
See Herz ¶¶ 50–52, 152, Figs. 1, 6–7. As explained below, Kruglick
discloses determining “that the electronic signal received from the motion
sensor that is indicative of the electronic device being jarred by a user is not
indicative of user frustration” according to claim 1. See Kruglick ¶¶ 24, 27,
34–42, Figs. 1–3.
Specifically, Kruglick discloses an electronic device containing a
frustration-detection module with “an accelerometer that may detect
shaking, throwing or impact of the device” that may denote a frustration
event. Kruglick ¶¶ 24, 27, Fig. 1. The electronic device may monitor for a
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frustration event by evaluating “a shaking of the device or a hard press of
a key or touch screen of the device.” Id. ¶ 35, Fig. 2; see id. ¶ 24.
Kruglick also discloses discarding or ignoring false frustration events.
Kruglick ¶¶ 27, 36–37. For example, Kruglick explains that “an event that
may be perceived as frustration, such as shaking the device, may be
discarded as not a frustration event because the shaking may be an input to
an active application,” e.g., “shaking as a method for accepting or denying
calls.” Id. ¶ 36. When discarding a false frustration event, Kruglick’s
electronic device determines “that the electronic signal received from the
motion sensor that is indicative of the electronic device being jarred by a
user is not indicative of user frustration” according to claim 1. See Final
Act. 7–8; Ans. 5.
Because (1) Herz discloses determining “whether the electronic
device is in a mode to accept user input” and (2) Kruglick discloses
determining “that the electronic signal received from the motion sensor that
is indicative of the electronic device being jarred by a user is not indicative
of user frustration,” the combined disclosures in the references teach or
suggest the disputed limitation. See Final Act. 6–8; Ans. 5; Herz ¶¶ 50–52,
151–152, Figs. 1, 6–7; Kruglick ¶¶ 24, 27, 34–42, Figs. 1–3.
(c) Summary for Claim 1
For the reasons discussed above, Appellant’s arguments have not
persuaded us that the Examiner erred in rejecting claim 1 for obviousness
based on Herz and Kruglick. In our view, the claimed subject matter
exemplifies the principle that “[t]he combination of familiar elements
according to known methods is likely to be obvious when it does no more
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than yield predictable results.” KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398,
416 (2007). Hence, we sustain the § 103 rejection of claim 1.
DEPENDENT CLAIMS 2–5, 7, 11–13, AND 18
Claims 2–5, 7, 11–13, and 18 depend directly or indirectly from
claim 1. Appellant does not argue patentability separately for these
dependent claims. See Appeal Br. 12; Reply Br. 7. Hence, we sustain the
§ 103 rejection of these dependent claims for the same reasons as claim 1.
See 37 C.F.R. § 41.37(c)(1)(iv).
INDEPENDENT CLAIM 19
As noted above, the § 103 rejection of claim 19 rests on Herz and
Kruglick. See Final Act. 14. Appellant argues that the Examiner erred in
rejecting claim 19 because the references fail to teach or suggest the
following limitation in claim 19: “communicating . . . information to the user
regarding the determination whether the signal received from a motion
sensor of the electronic device is indicative of user frustration.” See Appeal
Br. 13–14; Reply Br. 7–9.
In particular, Appellant quotes the Examiner’s statement that “Herz
. . . is silent whether the gesture is intended to indicate user frustration.’”
Appeal Br. 14 (quoting Final Act. 6); Reply Br. 8. Appellant then asserts
that “Herz does not disclose determining whether the signal received from
the motion sensor is indicative of user frustration and Herz cannot
communicate information regarding such a determination it does not make.”
Appeal Br. 14; Reply Br. 8. Appellant also asserts that “silencing an audible
alert and/or changing an alert mode” according to Herz does not
communicate information to a user whether a motion-sensor signal “is
indicative of user frustration” according to claim 19. Reply Br. 8 (citing
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Herz ¶ 52). In addition, Appellant contends that “Kruglick fails to cure the
deficiencies of Herz” because Kruglick’s action responsive to user
frustration “is a ‘network action’, such as ‘increasing a network service’ and
is not communicating to the user information.” Id. at 8 (quoting Kruglick
¶ 42).
The Examiner finds the Herz discloses “electronic action used as an
indication such as silencing an audible alert and/or changing an alert mode.”
Advisory Act. 2 (citing Herz ¶ 52). The Examiner also finds that Kruglick
discloses “the determination of user frustration and action based on the
frustration.” Ans. 5 (citing Kruglick ¶¶ 24, 42).
Based on the record before us, we agree with Appellant that the
Examiner has not adequately explained how the cited portions of Herz and
Kruglick teach or suggest “communicating . . . information to the user
regarding the determination whether the signal received from a motion
sensor of the electronic device is indicative of user frustration” according to
claim 19. Herz discloses an electronic device taking actions such as
“silencing an audible alert and/or changing an alert mode” on the electronic
device. Herz ¶ 52. Those device actions do not communicate information
to a user whether a motion-sensor signal “is indicative of user frustration”
according to claim 19. Moreover, in response to user frustration, Kruglick
discloses taking network actions such as (1) “increasing a network service in
a local area related to a device associated with the event frustration
packages,” (2) “increasing a power modulation in an area related to sender
or senders of the packages,” and (3) “beam steering toward the area.”
Kruglick ¶ 42; see id. ¶ 22. Those network actions do not communicate
information to a user whether a motion-sensor signal “is indicative of user
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frustration” according to claim 19. Hence, we do not sustain the § 103
rejection of claim 19.
INDEPENDENT CLAIM 22
As noted above, the § 103 rejection of claim 22 rests on Herz and
Kruglick. See Final Act. 15–17. Appellant argues that the Examiner erred
in rejecting claim 22 because the references fail to teach or suggest the
following limitation in claim 22: “determining whether the electronic device
is in a mode to accept user input from other than one or more motion sensors
of the electronic device.” See Appeal Br. 11; Reply Br. 6. Appellant’s
arguments regarding this limitation in claim 22 parallel Appellant’s
arguments regarding the following limitation in claim 1: “determine whether
the electronic device is in a mode to accept user input.” See Appeal Br. 11;
Reply Br. 6.
Appellant’s arguments do not persuade us of Examiner error. As
discussed above, Herz discloses that an electronic device may save power by
turning the accelerometers off and then turning them on after determining
that an application has issued an alert. Herz ¶ 152, Fig. 7; see id. at code
(57). By determining that an application has issued an alert, Herz’s
electronic device determines that it is in a mode to accept user input from
other than a motion sensor, e.g., from “a click wheel, a physical keyboard,
a mouse and/or a joystick,” responsive to the application issuing the alert.
See Final Act. 2–3, 6, 15; Ans. 4; Herz ¶¶ 3, 6, 8, 29–30, 33, 151–152, code
(57), Figs. 1, 4, 7. Because Appellant’s arguments do not persuade us of
Examiner error, we sustain the § 103 rejection of claim 22.
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DEPENDENT CLAIM 24
Claim 24 depends directly from claim 22. Appellant does not argue
patentability separately for claim 24. See Appeal Br. 12; Reply Br. 7.
Hence, we sustain the § 103 rejection of claim 24 for the same reasons
as claim 22. See 37 C.F.R. § 41.37(c)(1)(iv).
The § 103 Rejections of Claims 7–10, 14–17, 20, 21, 23, 25
DEPENDENT CLAIMS 7–10, 14–17, 23, AND 25
Claims 7–10 and 14–17 depend directly or indirectly from claim 1,
and claims 23 and 25 depend directly from claim 22. Appellant does not
argue patentability separately for these dependent claims. See Appeal
Br. 12; Reply Br. 7. Hence, we sustain the § 103 rejections of these
dependent claims for the same reasons as claims 1 and 22. See 37 C.F.R.
§ 41.37(c)(1)(iv).
DEPENDENT CLAIMS 20 AND 21
Claims 20 and 21 depend directly or indirectly from claim 19. On this
record, the Examiner has not shown how the additionally cited Kiraly
reference overcomes the deficiency in Herz and Kruglick discussed above
for claim 19. Hence, we do not sustain the § 103 rejection of claims 20
and 21.
CONCLUSION
We affirm the Examiner’s decision to reject claims 1–5, 7–18, and
22–25.
We reverse the Examiner’s decision to reject claims 19–21.
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In summary:
Claim(s)
Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed
19–25 112(a) Written Description 19–25
1–5, 7,
11–13, 18,
19, 22, 24
103 Herz, Kruglick
1–5, 7,
11–13, 18,
22, 24
19
8 103 Herz, Kruglick, Nasiri 8
9, 10 103 Herz, Kruglick, Flack 9, 10
14–16 103 Herz, Kruglick, Raghuraman 14–16
17, 20, 21 103 Herz, Kruglick, Kiraly 17 20, 21
23 103 Herz, Kruglick, Fiedler 23
25 103 Herz, Kruglick, Liu 25
Overall
Outcome
1–5, 7–18,
22–25 19–21
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)(1)(iv). See
37 C.F.R. § 41.50(f).
AFFIRMED IN PART