Ex Parte Agnetta et al

Patent Trial and Appeal Board

Apr 27, 2018

14274648 (P.T.A.B. Apr. 27, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
14/274,648 05/09/2014
136607 7590 05/01/2018
Lee & Hayes PLLC
601 West Riverside Avenue
Suite 1400
Spokane, WA 99201
FIRST NAMED INVENTOR
Bryan Todd Agnetta
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
AM2-1300US 3324
EXAMINER
HO,RUAYL
ART UNIT PAPER NUMBER
2175
NOTIFICATION DATE DELIVERY MODE
05/01/2018 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):
lhpto@leehayes.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte BRYAN TODD AGNETTA, AARON MICHAEL DONSBACH,
CATHERINE ANN HENDRICKS, BRIAN PETER KRAL YEVICH,
RICHARD LEIGH MAINS, JAE PUM PARK,
SEAN ANTHONY ROONEY, MARC ANTHONY SALAZAR,
JASON GLENN SIL VIS, and NINO YUNIARDI
Appeal2017-010712
Application 14/274,648
Technology Center 2100
Before ALLEN R. MacDONALD, JOSEPH P. LENTIVECH, and
PHILLIP A. BENNETT, Administrative Patent Judges.
MacDONALD, Administrative Patent Judge.
DECISION ON APPEAL 1
1 The Appellants identify Amazon Technologies, Inc. of Reno, Nevada as
the Real Party in Interest.
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Application 14/274,648
STATEMENT OF THE CASE
Appellants appeal under 35 U.S.C. § 134(a) from a Final Rejection
of claims 1, 3-9, 11-21, and 23-28. Appellants have cancelled claims 2, 10,
and 22. App. Br. 21, 23, 26. We have jurisdiction under 35 U.S.C. § 6(b ).
Representative Claim
Representative claim 1 under appeal reads in-part as follows
(emphases, formatting, and bracketed material added):
1. A mobile electronic device comprising:
[A.] one or more processors;
[G.] a user-interface module, stored in the memory and
executable on the one or more processors to:
[i.] present, on the touch-sensitive display, a screen
compnsmg:
[a.] an upper portion that includes a first list
including icons representing applications
... ; and
[b.] a lower portion that includes a first icon
representing a first content item associated
with an application corresponding to the
icon that has focus in the first list;
[ii.] determine a position of at least a portion of a user
relative to the mobile electronic device based at
least in part on data from the first camera and the
second camera;
[iii.] present, at least partly in response to the position of
the user relative to the mobile electronic device, an
altered version of at least one of:
[a.] the icon that has focus in the first list, or
[b.] the first icon in the lower portion.
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Application 14/274,648
Rejections on Appeal
1. The Examiner rejected claims 1, 3-7, 9, 11-17, and 25-28 under
35 U.S.C. § 103(a) as being unpatentable over the combination of Sanders et
al. (US 2013/0332856 Al; Dec. 12, 2013) and Cranfill et al. (US
2011/0249073 Al; Oct. 13, 2011). 2
2. The Examiner rejected claims 8, 18-21, 23, and 24 under 35 U.S.C.
§ 103(a) as being unpatentable over the combination of Sanders, Cranfill,
and Coyote et al. (US 2014/0337321 Al; Nov. 13, 2014). 3
Issue on Appeal
Did the Examiner err in rejecting claim 1 as being obvious?
Did the Examiner err in rejecting claim 18 as being obvious?
ANALYSIS
We have reviewed the Examiner's rejections in light of Appellants'
arguments that the Examiner has erred.
A.
The Examiner finds as to "determine a position of at least a portion of
a user relative to the mobile electronic device based at least in part on data
from the first camera and the second camera" in part G.ii. of claim 1:
2 The contentions discussed herein as to claim 1 are determinative as to this
rejection. Therefore, except for our ultimate decision, we do not discuss
claims 3-7, 9, 11-17, and 25-28 further herein.
3 The contentions discussed herein as to claims 1 and 18 are determinative as
to this rejection. Therefore, except for our ultimate decision, we do not
discuss claims 8, 19-21, 23, and 24 further herein.
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Application 14/274,648
Cranfill [0112] discloses "exposure adjustment operations (e.g.,
auto-exposure), focus adjustment operations (e.g., auto-focus),
etc.", when focusing on "a user", it is determining a position of
a user relative to the mobile electronic device[.]
Final Act. 6.
The Examiner also finds as to "present, at least partly in response to
the position of the user relative to the mobile electronic device, an altered
version of at least one of: the icon that has focus in the first list, or the first
icon in the lower portion" in part G.iii. of claim 1:
Sanders [0293] discloses "the top and bottom bars 210 and 370
disappear upon selection of the post button 2950. However, the
chat bubble icon 375 remains in the same position. As shown,
the'+' sign has been replaced with the number' 1 ',and the color
of the chat bubble icon has been changed from a first color (e.g.,
white) to a second different color (e.g., blue)."
Final Act. 6.
At page 13 of the Final Action, the Examiner repeats the above
findings of claim 1 as being applicable to the claim 18 steps of:
determining a change in position of the electronic device
relative to at least a portion of a user based at least in part on the
data; and
presenting second information on the display at least
partly in response to determining the change in position.
The Examiner further finds as to claim 18:
The exemplary citation of Sanders for the argued limitation
["presenting second information on the display at least partly in
response to determining the change in position"] is replaced by a
Cranfill citation in the present Examiner's Answer. The argued
limitation of claim 18 is disclosed in Cranfill paragraph [0325]
" ... a user of the device 2300 initiating a focus adjustment
operation by selecting an area of the display area 2325. In this
example, a selection is made by placing a finger 2335 anywhere
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Application 14/274,648
within the display area 2325. In some embodiments, a user
selects focus adjustment from a menu of possible image setting
adjustments." Wherein the menu is the "second information" as
recited in claim 18 and the menu is presented during a focus
adjustment, which is the "determining the change in position" of
the electronic device relative to a portion of a user as recited in
claim 18.
Ans. 6.
B.
The contentions we discuss are determinative as to the rejections on
appeal. Therefore, Appellants' other contentions are not discussed in detail
herein.
Appellants contend that the Examiner erred in rejecting claim 1 under
35 U.S.C. § 103(a) because:
Sanders uses a touch sensor to enable a user to select items on
the screen of the device .... [S]imilar to Sanders, Cranfill relies
on touch sensor data in order to receive a user selection. In
contrast, claim 1 recites presenting an altered version of an icon
"in response to the position of the user relative to the mobile
electronic device" and that the determining the position is "based
at least in part on data from the first camera and the second
camera." As with Sanders, Cranfill merely describes general
functions performed by a camera, such as "exposure adjustment
operations (e.g., auto-exposure), focus adjustment operations
(e.g., auto-focus), etc." Id., i-f [0112].
App. Br. 12-13.
Appellants also contend that the Examiner erred in rejecting claim 18
under 35 U.S.C. § 103(a) because:
Appellant respectfully disagrees and further submits that for at
least the reasons presented above regarding claim 1, Sanders,
including the cited portions thereof, does not teach or suggest
"presenting second information on the display at least partly in
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Application 14/274,648
response to determining the change in position," as recited in
claim 18.
App. Br. 16.
[E]ven in the newly cited portion of Cranfill from the Examiner's
Answer, the Office is only able to point to features that rely on
touch sensor data in order to receive a user selection. In contrast,
claim 18 recites presenting an altered version of an icon
"presenting second information on the display at least partly in
response to determining the change in position" and that the
determining the change in position is based on data received
"from one or more optical sensors of the electronic device." As
with Sanders, Cranfill merely describes general functions
performed by a camera, such as "exposure adjustment operations
(e.g., auto-exposure), focus adjustment operations (e.g., auto-
focus), etc." Id., i-f [0112].
Reply Br. 10.
C.
We discuss separately the Examiner's following analysis. The
Examiner concludes:
[T]here is no description given in the Specification of the present
invention relating to the first determining the user position
relative to the electronic device then causing altered version of
the focused icon in the first list or the first icon in the lower
portion.
Therefore, it is reasonable to conclude that it is not a
"triggering" relation between "the position of the user relative to
the mobile electronic device" and the "present an altered version
of at least one of: the icon that has focus in the first list, or the
first icon in the lower portion". Clearly, the "position of the user
relative to the mobile electronic device" and the "present an
altered version of at least one of: the icon that has focus in the
first list, or the first icon in the lower portion" are two separate
functions/ operations.
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In other words, "present an altered version of at least one
of: the icon that has focus in the first list, or the first icon in the
lower portion" can be performed either "after detennin[ing] the
position of the user relative to the mobile electronic device" or
"before determin[ing] the position of the user relative to the
mobile electronic device". There is no cause-result relation in
these two functions/operations.
Ans. 14--15 (emphasis omitted).
The Examiner's reasoning overlooks that MPEP 2143.03 II precludes
such an analysis.
When evaluating claims for obviousness under 35 U.S.C.
103, all the limitations of the claims must be considered and
given weight, including limitations which do not find support in
the specification as originally filed (i.e., new matter). Ex parte
Grasselli, 231 USPQ 393 (Bd. App. 1983) aff'd mem. 738F.2d
453 (Fed. Cir. 1984).
We read claims 1 and 18 as each requiring the "cause-result relation" that the
Examiner dismisses in their analysis.
D.
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, 761F.2d671, 674 (Fed. Cir. 1985) ("preponderance 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.
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Application 14/274,648
We conclude the Examiner's analysis fails to meet this standard
because the rejections do not adequately explain the Examiner's findings of
fact. Particularly, the findings that the prior art discloses the argued
"position of at least a portion of a user relative to the mobile electronic
device" (claim 1) and "position of the electronic device relative to at least a
portion of a user based" (claim 18), based upon the prior art disclosing touch
sensor based inputs (Sanders i-f 293; Cranfill i-f 325).
We further conclude, consistent with Appellants' arguments that
touching an icon or display (Sanders i-f 293; Cranfill i-f 325) is not equivalent
to determining a position of a device relative to at least a portion of a user,
there is insufficient articulated reasoning to support the Examiner's findings.
Therefore, we conclude that there is insufficient articulated reasoning to
support the Examiner's final conclusion that claims 1 and 18 would have
been obvious to one of ordinary skill in the art at the time of Appellants'
invention.
CONCLUSIONS
(1) Appellants have established that the Examiner erred in rejecting
claims 1, 3-9, 11-21, and 23-28 as being unpatentable under 35 U.S.C.
§ 103(a).
(2) On this record, the Examiner has not shown claims 1, 3-9, 11-21,
and 23-28 to be unpatentable.
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Application 14/274,648
DECISION
We reverse the Examiner's rejections of claims 1, 3-9, 11-21, and
23-28.
REVERSED
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