Drasnin, Sharon et al.

Patent Trials and Appeals Board

Feb 11, 2020

13471393 - (D) (P.T.A.B. Feb. 11, 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.
13/471,393 05/14/2012 Sharon Drasnin 336558-US-NP 8545
39254 7590 02/11/2020
Barta, Jones & Foley, P.C.
(Patent Group - Microsoft Corporation)
2805 Dallas Parkway
Suite 222
Plano, TX 75093
EXAMINER
TRAN, TRAN M.
ART UNIT PAPER NUMBER
2855
NOTIFICATION DATE DELIVERY MODE
02/11/2020 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 SHARON DRASNIN, SCOTT MITCHEL MAIL,
JIM TOM BELESIU, TIMOTHY C. SHAW,
MOSHE R. LUTZ, and PAUL HENRY DIETZ

Appeal 2019-000616
Application 13/471,393
Technology Center 2800
Before JEFFREY T. SMITH, BRIAN D. RANGE, and LILAN REN,
Administrative Patent Judges.
REN, 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, 4, 6, 9–20, and 22–25. See Final
Act. 2, 4. 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. 3.
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CLAIMED SUBJECT MATTER
The claims are directed to “pressure sensitive keyboard” which
“includes multiple pressure sensors associated with the keys of the
keyboard.” Spec. 44. Claim 1, reproduced below, is illustrative of the
claimed subject matter:
1. A method comprising:
obtaining an indication of pressure applied to a key of a
pressure sensitive keyboard configured to be physically and
communicatively removable from a computing device;
determining that the pressure applied to the key is a key
strike in response to:
the pressure applied to the key rising to a key press
threshold amount;
no more than a threshold number of keys concurrently
being pressed; and
the pressure applied to the key dropping to a key release
threshold amount after a de-bouncing amount of time has
elapsed, the de-bouncing amount of time comprising a duration
during which the pressure applied to the key is ignored to avoid
a false determination of a key release; and
providing feedback for a user of the pressure sensitive
keyboard that a key strike occurs in response to determining
that the pressure applied to the key is a key strike.

Claim Appendix (Appeal Br. 47).
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REFERENCES
The prior art references relied upon by the Examiner are:
Name Reference Date
Smith
Bellwood
Westerman
US 6,603,461 B2
US 6,684,166 B2
US 8,633,898 B2
Aug. 5, 2003
Jan. 27, 2004
Jan. 21, 2014
Casparian US 8,674,941 B2 Mar. 18, 2014
Schultz US 7,454, 712 B2 Nov. 18, 2008
Chen US 2011/0134043 A1 Jun. 9, 2011

REJECTIONS
Claims 1, 3, 4, 6, 9–20, and 22–25 rejected under 35 U.S.C. § 101.
Final Act. 2.2
Claims 1, 22, and 25 are rejected under pre–AIA 35 U.S.C. § 103(a)
as being unpatentable over Westerman in view of Smith. Final Act. 4.
Claims 3, 4, 20, 23, and 24 are rejected under pre–AIA 35 U.S.C.
§ 103(a) as being unpatentable over Westerman in view of Smith and
Schultz. Final Act. 8.
Claims 6, 9–11, 13, and 14 are rejected under pre–AIA 35 U.S.C.
§ 103(a) as being unpatentable over Westerman in view of Smith and Chen.
Final Act. 10.
Claim 12 is rejected under pre–AIA 35 U.S.C. § 103(a) as being
unpatentable over Westerman in view of Smith, Chen, and Bellwood. Final
Act. 12.

2 The Final Action lists claim 7 as being rejected under section 101. Final
Act. 2. Claim 7 has been canceled. Claims Appendix (Appeal Br. 49).
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Claim 15, 16, and 18 are rejected under pre–AIA 35 U.S.C. § 103(a)
as being unpatentable over Westerman in view of Smith, Chen, and Anson.
Final Act. 12.
Claim 17 is rejected under pre–AIA 35 U.S.C. § 103(a) as being
unpatentable over Westerman in view of Smith, Chen, Anson, and
Casparian. Final Act. 15.
Claim 19 is rejected under pre–AIA 35 U.S.C. § 103(a) as being
unpatentable over Westerman in view of Chen, Anson, and Smith. Final
Act. 16.

OPINION
Section 101 Rejection
Legal Framework
An invention is patent-eligible if it claims a “new and useful process,
machine, manufacture, or composition of matter.” 35 U.S.C. § 101.
However, the Supreme Court has long interpreted 35 U.S.C. § 101 to include
implicit exceptions: “[l]aws of nature, natural phenomena, and abstract
ideas” are not patentable. E.g., Alice Corp. v. CLS Bank Int’l, 573 U.S. 208,
216 (2014).
In determining whether a claim falls within an excluded category, our
inquiry focuses on the Supreme Court’s two-step framework, described in
Mayo and Alice. Id. at 217–18 (citing Mayo Collaborative Servs. v.
Prometheus Labs., Inc., 566 U.S. 66, 75–77 (2012)). In accordance with
that framework, we first determine what concept the claim is “directed to.”
See Alice, 573 U.S. at 219 (“On their face, the claims before us are drawn to
the concept of intermediated settlement, i.e., the use of a third party to
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mitigate settlement risk.”); see also Bilski v. Kappos, 561 U.S. 593, 611
(2010) (“Claims 1 and 4 in petitioners’ application explain the basic concept
of hedging, or protecting against risk.”).
Concepts determined to be abstract ideas, and thus patent ineligible,
include certain methods of organizing human activity, such as fundamental
economic practices (Alice, 573 U.S. at 219–20; Bilski, 561 U.S. at 611);
mathematical formulas (Parker v. Flook, 437 U.S. 584, 594–95 (1978)); and
mental processes (Gottschalk v. Benson, 409 U.S. 63, 69 (1972)). Concepts
determined to be patent eligible include physical and chemical processes,
such as “molding rubber products” (Diamond v. Diehr, 450 U.S. 175, 191
(1981)); “tanning, dyeing, making water-proof cloth, vulcanizing India
rubber, smelting ores” (id. at 182 n.7 (quoting Corning v. Burden, 56 U.S.
252, 267–68 (1853))); and manufacturing flour (Benson, 409 U.S. at 69
(citing Cochrane v. Deener, 94 U.S. 780, 785 (1876))).
In Diehr, the claim at issue recited a mathematical formula, but the
Supreme Court held that “[a] claim drawn to subject matter otherwise
statutory does not become nonstatutory simply because it uses a
mathematical formula.” Diehr, 450 U.S. at 176; see also id. at 191 (“We
view respondents’ claims as nothing more than a process for molding rubber
products and not as an attempt to patent a mathematical formula.”). Having
said that, the Supreme Court also indicated that a claim “seeking patent
protection for that formula in the abstract . . . is not accorded the protection
of our patent laws, . . . and this principle cannot be circumvented by
attempting to limit the use of the formula to a particular technological
environment.” Id. (citing Benson and Flook); see, e.g., id. at 187 (“It is now
commonplace that an application of a law of nature or mathematical formula
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to a known structure or process may well be deserving of patent
protection.”).
If the claim is “directed to” an abstract idea, we turn to the second
step of the Alice and Mayo framework, where “we must examine the
elements of the claim to determine whether it contains an ‘inventive
concept’ sufficient to ‘transform’ the claimed abstract idea into a patent-
eligible application.” Alice, 573 U.S. at 221 (citations omitted). “A claim
that recites an abstract idea must include ‘additional features’ to ensure ‘that
the [claim] is more than a drafting effort designed to monopolize the
[abstract idea].’” Id. (alterations in original) (quoting Mayo, 566 U.S. at 77).
“[M]erely requir[ing] generic computer implementation[] fail[s] to transform
that abstract idea into a patent-eligible invention.” Id.
The Office published revised guidance on the application of § 101.
USPTO’s January 7, 2019 Memorandum, 2019 Revised Patent Subject
Matter Eligibility Guidance (“Memorandum”), 84 Fed. Reg. 50 updated by
USPTO, October 2019 Update: Subject Matter Eligibility (available at
https://go.usa.gov/xp88j); see also October 2019 Patent Eligibility Guidance
Update, 84 Fed. Reg. 55942 (Oct. 18 2019) (notifying public that October
update was available). Under that guidance, we first look to whether the
claim recites:
(1) any judicial exceptions, including certain groupings of
abstract ideas (i.e., mathematical concepts, certain methods
of organizing human activity such as a fundamental
economic practice, or mental processes); and
(2) additional elements that integrate the judicial exception into a
practical application (see MPEP § 2106.05(a)–(c), (e)–(h)).
Only if a claim recites a judicial exception and does not integrate that
exception into a practical application, do we then look to whether the claim:
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(3) adds a specific limitation beyond the judicial exception that
is not “well-understood, routine, conventional” in the field
(see MPEP § 2106.05(d)); or
(4) simply appends well-understood, routine, conventional activities
previously known to the industry, specified at a high level of
generality, to the judicial exception.
See generally Memorandum.
Analysis
Applying the guidance set forth in the Memorandum, we conclude
that claims 1, 3, 4, 6, 9–20, and 22–25 are patent eligible under § 101.
Revised Step 2A, Prong One–Directed to a Judicial Exception
The Memorandum instructs us first to determine whether each claim
recites any judicial exception to patent eligibility. 84 Fed. Reg. at 54. The
Memorandum identifies three judicially-excepted groupings: (1)
mathematical concepts, (2) certain methods of organizing human activity
such as fundamental economic practices, and (3) mental processes. Id. at 52.
The Examiner determines that the claims are directed to an abstract
idea of “inform[ing] a user of the pressure sensitive keyboard that pressure
applied to a key resulted in a key strike by providing a feedback” without
significantly more. Ans. 3; see also Final Act. 2. Appellant argues, on the
other hand, that “the claimed solution is rooted in computer technology to
overcome uncertainty regarding whether pressure applied to a pressure
sensitive key board is a key strike.” Appeal Br. 20–21.
Claim 1 recites the following limitations: (1) “obtaining an indication
of pressure applied to a key of a pressure sensitive keyboard . . . ;” (2)
“determining that the pressure applied to the key is a key strike in response
to” various cited conditions; and (3) “providing feedback for a user of the
pressure sensitive keyboard . . . .” These limitations, under their broadest
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reasonable interpretation, involve no more than collecting, analyzing, and
displaying data. The Examiner finds, and Appellant does not dispute3, that
the recited steps “can be done by a human monitoring the change in
pressure, the number of keys being pressed, and the amount of time has
elapsed.” Ans. 4. The Examiner finds, for example, that the determining
step “can be done by a user monitoring the pressure applied to a key and
determining whether the applied pressure would reach the predetermined
pressure threshold.” Id. at 3.
Claim 1, as well as the remaining claims reciting the same subject
matter, are therefore directed to an abstract idea.
Revised Step 2A, Prong Two – Practical Application
Having determined that claims 1, 3, 4, 6, 9–20, and 22–25 are directed
to an abstract idea, we next look to determine whether the claims recite
“additional elements that integrate the judicial exception into a practical
application.” MPEP § 2106.05(a)–(c), (e)–(h); Memorandum, 84 F.3d at
53–54. Integration into a practical application requires an additional element
or a combination of additional elements in the claim to “apply, rely on, or
use the judicial exception in a manner that imposes a meaningful limit on the
judicial exception, such that the claim is more than a drafting effort designed
to monopolize the exception.” Memorandum, 84 Fed. Reg. at 53–54; see
also id. at 55 (setting forth exemplary considerations indicative that an
additional element or combination of elements may have integrated the
judicial exception into a practical application).

3 No Reply Brief was filed.
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Here, Appellant argues that “claim 1 represents an improvement over
conventional techniques” regarding key strike assessment. Appeal Br. 21.
Claim 1 indeed recites elements additional to the abstract idea which are
conditions for the “determining” step to assess that “the pressure applied to
the key is a key strike.” Claim 1 also recites that the determining step
applies to “a pressure sensitive keyboard configured to be physically and
communicatively removable from a computing device” for “a user” of such
a device. Claim 1 therefore improves the technological field of a pressure
sensitive keyboard. Claim 1, when considered as a whole, integrates the
judicial exception into a practical application of a pressure sensitive
keyboard and satisfies § 101 subject matter eligibility.
Because we conclude that the judicial exception has been integrated
with additional elements into a practical application for the device of a
pressure sensitive keyboard, we need not proceed to analyze whether the
claims provide an inventive concept.
The rejection of claims 1, 3, 4, 6, 9–20, and 22–25 under section 101
is not sustained.
Section 103 Rejections
We review the appealed rejections for error based upon the issues
identified by Appellant and in light of the arguments and evidence produced
thereon. Cf. Ex parte Frye, 94 USPQ2d 1072, 1075 (BPAI 2010)
(precedential) (cited with approval in In re Jung, 637 F.3d 1356, 1365 (Fed.
Cir. 2011) (“[I]t has long been the Board’s practice to require an applicant to
identify the alleged error in the examiner’s rejections.”)). After having
considered the evidence presented in this Appeal and each of Appellant’s
contentions, we are not persuaded that reversible error has been identified,
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and we affirm the Examiner’s § 103 rejections for the reasons expressed in
the Final Office Action and the Answer. We add the following primarily for
emphasis.
Claim 1
In rejecting claim 1 under section 103, the Examiner finds “although
Westerman does not directly or explicitly teach determining that the key is
released in response to the pressure applied to the key dropping to a key
release threshold amount only after a de-bouncing amount of time has
elapsed,” Westerman teaches: (1) “tracking group paths through successive
proximity images including detection of path endpoints at contact
touchdown and liftoff;” (2) “that proximity markers record the time at which
each contact path drops below a release proximity threshold prior to total lift
off;” and (3) “the debounce tests which checks if the finger has touched the
surface for at least two sensor array scan cycles and that it had been off the
surface for several scan cycles before touching down (i.e., debouncing
occurs when the finger lifts off and quickly touches back down over the
same spot).” Final Act. 5 (citing various portions of Westerman). The
Examiner also finds that “Smith teaches a de-bounce logic that disregards
any successive key actuation occurring within an adjustable time interval
after an initial key actuation.” Id. Based on The Examiner finds that the
recited step “determining that the pressure applied to the key is a key strike
in response to . . . the pressure applied to the key dropping to a key release
threshold amount after a de-bouncing amount of time has elapsed” is taught
by the combined teaching of Westerman and Smith. Id.
Appellant argues that the Examiner reversibly erred with regard to this
claim limitation but does not address the Examiner’s findings of Westerman
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at all. Appeal Br. 26–28. Appellant’s argument is solely directed to whether
Smith teaches or suggests the limitation at issue. Id. We are unpersuaded
by Appellant’s argument, first and foremost, because it attacks the
references individually, rather than considering what the combined
references would have suggested to the person of ordinary skill in the art.
“Non-obviousness cannot be established by attacking references individually
where the rejection is based upon the teachings of a combination of
references.” In re Merck & Co., 800 F.2d 1091, 1097 (Fed. Cir. 1986).
We are also unpersuaded by Appellant’s argument because it does not
identify reversible error in the Examiner’s findings in support of the
rejection. For example, the Examiner finds that Westerman teaches the
debounce test as to whether a user’s touch of a key on a keyboard is ignored.
Final Act. 5 (citing various portions of Westerman including 5:36–65); Ans.
7 (citing the same). The Examiner finds that Westerman describes “a release
proximity threshold” which teaches the recited “pressure applied to the key
dropping to a key release threshold.” Ans. 7–8 (citing Westerman 14:10–13
and column 47). The Examiner provides a detailed analysis as to the basis
for the rejection which is not addressed by Appellant. Ans. 5–7.
We further note that Appellant, in fact, acknowledges the Examiner’s
finding of Smith’s debounce logic for a keyboard. Appeal Br. 27. Appellant
merely argues that “the de-bouncing amount of time” recited in claim 1
“necessarily occurs” prior to “a key strike” which – according to Appellant –
is distinguishable from Smith’s time interval “following a key actuation.” Id
(emphases removed). Appellant, however, does not dispute the Examiner’s
explanation as to how “a key strike” and “a key actuation” are related but
different. Ans. 5–6 (explaining, for example, that both “key strike” and “key
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actuation” involve a user’s touch of a key but “a key actuation may or may
not be registered as input by the system, but a key strike meeting the pre-
established criteria will be registered as input by the system). Appellant’s
position, thus, does not identify reversible error.
We sustain the rejection of claim 1 under section 103 based on
Westerman and Smith. Appellant does not argue separately the rejections of
claims 3, 4, 6, 10–14, 22, and 25 and they are sustained as well. Appeal Br.
28; see 37 C.F.R. § 41.37(c)(1)(vii).
Claim 9
Claim 9 is a dependent claim of claim 1 and additionally recites “the
key press threshold amount varying for different keys of the keyboard.” The
Examiner rejects claim 9 based on the combined teaching of Westerman,
Smith, and Chen. Final Act. 10–11.
In the Examiner’s Answer, the Examiner finds that, for example,
Chen describes “keyboard 602 includes a pressure sensor 604 capable of
capturing state information associated with varying pressures exerted on
each key of the keyboard 602.” Chen ¶ 36 (cited in Ans. 8). The Examiner
finds that Chen describes a process to assess whether a key is “light-pressed”
or “heavy-pressed” which would result in different key input combinations.
Ans. 8 (citing Chen ¶¶ 23–25); see also Final Act. 10–11 (citing Chen ¶ 33).
The Examiner provides an example of the operation of Chen’s keyboard in
support of the rejection. Ans. 8–9.
Appellant’s argument with regard to claim 9 is not persuasive because
it does not address the Examiner’s fact findings of Chen. Appellant does not
dispute the Examiner’s fact findings with regard to Chen ¶¶ 23–25 and Chen
¶ 36. See Appeal Br. 30–31. Appellant does not dispute the Examiner’s
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example of Chen (Ans. 8–9) in support of the rejection. We are therefore
not persuaded by Appellant’s argument that Chen ¶ 33 does not teach or
suggest the claim limitation for the argument does not address the
Examiner’s findings of Chen as a whole. We further note that Appellant’s
argument with regard to Chen ¶ 33 is unelaborated and conclusory and is
unpersuasive for this additional reason. We sustain the rejection of claim 9.
Claim 15
Claim 15 is an independent claim and the dispositive issue here is
whether the prior art teaches or suggest “the key press threshold amount
varying for different keys of the keyboard” as recited.
The Examiner provides the same relevant findings as claim 9 with
regard to Chen in support of the limitation. Ans. 10. Appellant’s arguments
here mirror those raised for claim 9. Appeal Br. 34 (arguing that Chen ¶ 33
does not teach or suggest this limitation and that Westerman and Anson do
not remedy the deficiency without addressing the Examiner’s findings based
on Chen as a whole). We sustain the rejection of claim 15 for the reasons
provided supra with regard to claim 9.
We sustain the rejection of claim 15 under section 103 based on
Westerman, Smith, Chen, and Anson. Appellant does not argue separately
the rejections of claims 16–19 and they are sustained as well. Appeal Br.
35; see 37 C.F.R. § 41.37(c)(1)(vii).
Claim 20
Claim 20 recites:
20. A method as recited m claim 1, the determining
comprising:
determining that the pressure applied to the key is a key
strike in response to:
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the pressure applied to the key rising to the key press
threshold amount;
no more than the threshold number of keys concurrently
being pressed;
a same key rejection threshold amount of time having
elapsed since a previous key strike was determined for the key,
the same key rejection threshold amount of time indicating an
amount of time that the key is to be released prior to a
subsequent determination that the key is struck; and
a different key rejection threshold amount of time having
elapsed since a previous key strike was determined for a
different key of the keyboard, the different key rejection
threshold amount of time indicating an amount of time that the
different key is to be released prior to a subsequent
determination that the key is struck.

Claims Appendix (Appeal Br. 53).

The Examiner finds that these limitations are taught or suggested by a
combined teaching of Westerman, Smith, and Schultz. Final Act. 8. For
example, because Schultz teaches customizing the debouncing time based on
particular parameters such as user reaction time – which is acknowledged by
Appellant (Appeal Br. 39 (acknowledging that Schultz describes ignoring
certain user inputs based on various parameters)), the Examiner finds that
“the modification of Westerman by Smith and Schultz would enable the
de-bounce amount of times to be customized as well as when a key actuation
can be ignored” and customizing the debouncing time based on the user’s
reaction time. Ans. 13.
Appellant again attacks Schultz individually and in isolation from the
remaining cited references. Appeal Br. 39 (asserting without elaboration
that Schultz does not teach or suggest the limitations at issue without
addressing the combined teaching). “Non-obviousness cannot be established
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by attacking references individually where the rejection is based upon the
teachings of a combination of references.” Merck, 800 F.2d at 1097. We
are not persuaded as a result. We further note that Appellant’s argument is
not persuasive because it does not address the Examiner’s detailed analysis
as to why Westerman modified by Smith and Schultz teaches or suggests the
limitations of claim 20. See Ans. 10–14. We sustain the rejection of claim
20.
Claim 23
The dispositive issue here for independent claim 23 is whether the
combined prior art teaches or suggests
determining that the pressure applied to the key is a key strike
in response to: the pressure applied to the key rising to a key
press threshold amount; no more than a threshold number of
keys concurrently being pressed; a same key rejection threshold
amount of time having elapsed since a previous key strike was
determined for the key, the same key rejection threshold
amount of time indicating an amount of time that the key is to
be released prior to a subsequent determination that the key is
struck; and a different key rejection threshold amount of time
having elapsed since a previous key strike was determined for a
different key of the keyboard, the different key rejection
threshold amount of time indicating an amount of time that the
different key is to be released prior to a subsequent
determination that the key is struck.

Appeal Br. 41–42.
The Examiner provides the same relevant findings as claim 20 with
regard to the combined teaching of Westerman, Smith, and Schultz in
support of the limitations. Ans. 14. Appellant’s arguments here mirror
those raised for claim 20. Appeal Br. 34 (asserting without elaboration that
Schultz does not teach or suggest the limitations at issue without addressing
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the combined teaching). We sustain the rejection of claim 23 for the reasons
provided supra with regard to claim 20. Appellant does not argue separately
the rejection of claim 24 and it is sustained as well. Appeal Br. 45; see
37 C.F.R. § 41.37(c)(1)(vii).

CONCLUSION
The Examiner’s rejection under section 101 is reversed.
The Examiner’s rejections under section 103 are affirmed.
More specifically,
DECISION SUMMARY
Claims
Rejected
35 U.S.C. § Reference(s)/Basis  Affirmed Reversed
1, 3, 4, 6, 9–
20, 22–25
101 Eligibility 1, 3, 4, 6,
9–20, 22–
25
1, 22, 25 103 Westerman, Smith 1, 22, 25
3, 4, 20, 23,
24
103 Westerman, Smith,
Schultz
3, 4, 20,
23, 24

6, 9–11, 13,
14
103 Westerman, Smith,
Chen
6, 9–11,
13, 14

12 103 Westerman, Smith,
Chen, Bellwood
12
15, 16, 18 103 Westerman, Smith,
Chen, Anson
15, 16, 18
17 103 Westerman, Smith,
Chen, Anson,
Casparian
17
19 103 Westerman, Chen,
Anson, Smith
19
Overall
Outcome:
  1, 3, 4, 6,
9–20, 22–
25

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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